H v Mitson and Others
| Jurisdiction | England & Wales |
| Judge | MRS. JUSTICE ELEANOR KING,Mrs. Justice Eleanor King |
| Judgment Date | 01 December 2009 |
| Neutral Citation | [2009] EWHC 3114 (Fam) |
| Court | Family Division |
| Date | 01 December 2009 |
| Docket Number | Case No: FD06F00810 |
[2009] EWHC 3114 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs. Justice Eleanor King
Case No: FD06F00810
Howard Smith (instructed by Crane Staples) for the Appellant
Miranda Allardice (instructed by Wilsons) for the All Respondents
Hearing dates: 9th October 2009
This is an appeal and cross appeal in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) following the death of J who died on 10 th July 2004 aged 70.
J (the deceased) left a net estate of £486,000. The beneficiaries were the Blue Cross Animal Welfare Charity, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals (the Charities).
J made no provision in her will dated 16 th April 2002 for her daughter, H (the daughter). With the will was a letter of wishes in which the deceased explained her reasons for preventing her only child from benefiting from her estate.
It is that failure of her mother to provide for her that H sought to challenge when she issued proceedings under the 1975 Act. H contends that she is a child of the deceased and that the disposition of her mother's estate effected by her will……. "is not such as to make reasonable financial provision for the applicant".
The Charities opposed the application.
The trial took place over 2 days on the 29 th and 30 th May 2007 before District Judge Ian Million. The judgment was handed down in August 2007 but the order was not perfected until 17 th December 2007. District Judge Million held that the deceased had failed to make reasonable provision for her daughter and ordered that H be paid £50,000 from the estate of the deceased. In addition the District Judge made various orders in respect of the costs of the claim.
By a Notice of Appeal dated the 17 th January 2008 H appealed against that order, contending that the sum of £50,000 ordered by the District Judge to be paid by the estate was insufficient.
Having considered the judgment of District Judge Million, the Charities took the pragmatic decision not to initiate their own appeal against the order. They took the view that, given the relatively modest award, the cost of launching an appeal could not be justified. Once, however, the daughter launched an appeal a decision was made on behalf of the Charities to cross appeal on the ground that the judge had failed properly to apply the law and that, had he done so, he would have concluded that no provision for the daughter was reasonable provision.
Unfortunately it was not until the 9 th October 2009 that the appeal came on for hearing. Mr. Howard Smith, who had appeared for the daughter at first instance, represented her once again. Mrs. Allardice represented the Charities, Mr. Harrap who represented the Charities at first instance and who had drafted the grounds for the cross appeal having become unwell.
It was decided between the parties that Mr. Smith should open the matter and set out the law; thereafter Ms Allardice would make her submissions on her cross appeal as to whether or not no provision was reasonable provision (in the circumstances of the present case).
Time constraints at the hearing of the appeal and cross appeal meant that counsel invited the court to adjourn the hearing at the conclusion of the cross appeal and to give judgment on the first issue, namely whether the deceased failed to make reasonable provision for her daughter. In the event that the cross appeal was allowed that would mark the end of the matter. If however the cross appeal was to be dismissed then the matter would have to be re-listed for a further hearing on the issue of quantum.
The Factual Matrix
The deceased was born on the 1 st June 1934. She married T on the 3 rd March 1956 when she was 21. He died just 4 years later in June 1960 in an industrial accident by which time his wife was pregnant with the daughter H, the claimant in these proceedings.
The daughter was born on 7 th September 1960. In the mid 1960s the deceased formed a relationship with B. The deceased and B lived together with the daughter, although they never married and had no other children. After B's death in 1996 J lived alone for the next 8 years until her death in 2004.
In about 1977 the daughter, then 17 years old, met a young man, N. The deceased disapproved of N, she thought that he would not make anything of his life and did not wish her daughter to have anything to do with him. The ensuing disagreement between mother and daughter went far beyond the sort of normal teenage disagreements that occur between adolescent daughters and mothers. In February 1978 the daughter secretly left home during the night and went to live with N at the home of his parents. Initially the deceased did not know where the daughter was, although she suspected she was with N. She reported the daughter as missing to the police and they visited N's family home where the Police found the daughter to be safe and well, but refusing to return home. The daughter never again lived under the same roof as her mother and there was no contact between them for the next 5 years.
As District Judge Million put it in his judgment "this was the start of what turned out to be a lifelong separation between mother and daughter".
Five years later, on the 30 th April 1983, the daughter married N. The deceased was neither invited to, nor informed of the wedding. During the course of her marriage the daughter has had 5 children. They are:
A born 6 th January 1984 (25)
I born 22 nd April 1987 (22)
L born 6 th November 1988 (20)
M born 18 th November 1991 (16)
E born 11 th November 1996 (11).
During the intervening years there were 3 attempts at reconciliation. The first was initiated by the daughter's mother in law; she telephoned the deceased to tell her that the daughter was pregnant. This first reconciliation lasted for about a year between May 1983 and April 1984 and spanned the birth of the deceased's first grandchild, A.
The deceased's diary shows that by 1984 relations were strained. The last entry is dated 26 th May 1984 which refers to N and said "had a call from the village idiot at—to say he was coming out to put a rope around my throat and H told me to F….. off". This telephone call led to the deceased instructing her solicitors to write a warning letter to N and also to her reporting his behaviour to the police.
The daughter gave evidence about this incident to the District Judge. DJ Million asked her several times what exactly her husband had said during the course of the telephone call. The District Judge found that the daughter's evidence was unsatisfactory and that she was refusing to answer his questions and had not forgotten (as she claimed) the content of the phone call. This exchange led the District Judge to make a finding that "for me the real significance of this exchange was that it undermined H's current credibility".
On 21 st March 1984 the deceased made a will excluding her daughter from any benefit. At that time the deceased and the daughter were still on speaking terms although, it is clear from the diary entries that, relations between them were strained. The deceased signed a letter of wishes the same day giving her reasons for omitting the daughter; in the letter she referred to the fact that her daughter had left her in 1978 and married in 1983. The District Judge was satisfied that the letter contained a number of factual inaccuracies but it, undoubtedly, made the fundamental position of the deceased plain.
Following the unpleasant telephone call between the deceased and N described in her diary on 26 th May 1984, there was a 10 year break in contact between the deceased and the daughter. During that period I, L and M were all born.
The second attempt at a reconciliation occurred in 1994. In April 1994 there was an accidental meeting between mother and daughter whilst out shopping. The deceased wrote several friendly letters and suggested a meeting. The daughter, her husband and their 4 children visited the deceased on the 1 st June 1994 for her 60 th birthday. The daughter on her account, thought the day had gone well. The deceased did not, for on the following day on the 2 nd June she wrote a letter to her daughter which was highly critical and referred back to "the pain that I had inflicted on me 17 years ago".
The final attempt at reconciliation again followed a chance meeting, this time at the dentists' between the deceased and N six years later, in late 1999. Again an exchange of letters followed. In December 1999 the daughter apologised to her mother for the "heartache" she had caused. The deceased responded in a letter dated 14 th January 2000. In the letter she asked for the apology to be committed to writing in order to "enable me to show my solicitor to show that you are really sincere thistime about our relationship." The written apology was duly sent and the daughter was told that she (the deceased) was sure that her solicitor would "approve" the letter of apology.
This reconciliation was again short lived; it would seem that the deceased was upset at her daughter's choice of name for her youngest daughter E as it is the name of the daughter's mother in law; a woman the deceased disliked.
On the 16 th April 2002 the deceased executed her final will with a new letter of wishes. The letter of wishes again...
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