Ilott v Mitson
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Parker |
| Judgment Date | 03 March 2014 |
| Neutral Citation | [2014] EWHC 542 (Fam) |
| Docket Number | Case No: FD06F00810 |
| Court | Family Division |
| Date | 03 March 2014 |
[2014] EWHC 542 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Parker
Case No: FD06F00810
Mr John Collins (who appeared pro bono) for the Applicant
Ms Penelope Reed QC (instructed by Wilsons Solicitors LLP) for the 3rd, 4th and 5th Respondents
Hearing dates: 16 October 2013
This is an appeal brought by a Claimant against a decision on quantum in an application under the Inheritance (Provision for Family and Dependants) Act 1975 made by District Judge Million, as he then was, on 7 August 2007. The Respondents, three charities, now seek to uphold his original award.
The deceased was Melita Jackson and the Claimant her estranged daughter. The action was brought against the personal representatives of the deceased and the three charities the beneficiaries under the deceased's will. The personal representatives played no part in the proceedings.
The Respondents resisted the claim. They contended that the Claimant had not satisfied the first "gateway" hurdle pursuant to the Act, namely that she had not established, in her particular circumstances, that the will did not make reasonable provision for her. The Claimant had left home in her late teens and married a man with whom she has had five children. The deceased profoundly disagreed with her lifestyle choice and an irreconcilable rift developed between them. Attempts at reconciliation were unsuccessful. District Judge Million found that the main responsibility for the rift lay with the deceased although the Claimant and her husband bore some of the responsibility for the difficulties.
The Claimant and her husband and family live modestly in a housing association house in the Home Counties. They are heavily dependent on state benefits. The Claimant does not work, and her husband's income is small. They are in receipt of housing benefit, council tax benefit and tax credit.
District Judge Million held that the fact that the Claimant was an adult did not debar her from establishing that the will did not make reasonable provision for her. He found that it was relevant that she was of limited means. He found that the rejection by the deceased of her only child at the age of seventeen, then maintained for the rest of her life, was unreasonable. That had led to the deceased unreasonably excluding her daughter from any financial provision in her will, despite her daughter's obviously constrained and needy financial circumstances and wish for and attempts at reconciliation. He held that the reasons given by the deceased for excluding her daughter, set out in letters written in 1984 and 2002, both contained a number of factual inaccuracies in the attempt to explain her decision, which adds to and supports the unfairness.
He referred to the judgment of Oliver J in Re Coventry [1981] CH.461. Subject to the court's powers under the Act, a person may dispose of property in whichever way he or she pleases. But the court must decide whether,
"not just that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than the spouse, for that applicant's maintenance."
In Espinosa v Bourke [1999] 1FLR 747 Butler-Sloss LJ said that if an applicant is of working age, with a job or capable of obtaining a job which would be available,
"the fact that is in favour of his claim for financial provision may not be of much weight in the scales … however … the case should not be approached upon a preconceived notion that there was a heavy burden on applicants of full age. In these days where persons without qualifications find it difficult to find employment, the court should not approach the question of what is the appropriate maintenance with any preconceived view. All the circumstances of the applicant must be considered."
District Judge Million concluded that it was an "unreasonable result" that no provision at all was made at all for the Claimant in circumstances where she was in some financial need.
"However, I also accept that [the Claimant] has not had any expectancy of any provision for herself. [The Claimant and her husband] have managed their life over many years without any expectancy that [the Claimant] would receive anything. That does not mean that the result is a reasonable one in the straitened financial circumstances of the family. But it does mean, in my judgment, that any provision must now be limited."
The judge then went on to determine, on the material available to him, that appropriate provision would be a lump sum of £50,000.
The Claimant appealed to the High Court in respect of quantum. The Respondents cross-appealed both against the determination that the will did not make reasonable provision for the Claimant and quantum. It was their case that their appeal in respect of the "gateway", as I have called it, should be heard first. The appeal was apparently heard by Eleanor King J under some pressure of time. It was contended that if she found in favour of the Claimant in respect of the "gateway" provision then the Claimant's appeal in respect of quantum would fall away. She accepted that argument. She allowed the Respondents' appeal.
The Claimant appealed to the Court of Appeal. The Court of Appeal allowed the appeal. It held that the District Judge had made a value judgment applying the criteria set out in section 3 of the I(PFD)A 1975 which he was entitled to reach. He had not given undue weight to the unreasonableness of the deceased's actions or allowed financial need to dictate the outcome.
The Claimant's outstanding appeal was accordingly remitted to a judge of the High Court other than Eleanor King J.
These proceedings have taken an inordinately long time to be brought on. The appeal to the Court of Appeal was substantially out of time but an extension of time was given.
Mrs Justice Eleanor King's order was dated 1 December 2009 and the decision of the full Court of Appeal is dated 31 March 2011. Steps were eventually taken to have the appeal listed. Sir James Munby P. gave directions on 7 May 2013. By that time, there had been three relevant developments. (i) Mr John Collins of counsel, who has been acting latterly on behalf of the Claimant, and who acts pro-bono, had taken the view that his predecessor's grounds of appeal needed supplementation (ii) the Claimant had come into possession of a letter which she said required to be put before the court. That letter had on her unchallenged account only came into her possession after the hearing before the District Judge but before the appeal hearing before Eleanor King J. The Respondents accordingly submitted that it did not fulfil the relevant tests under Ladd v Marshall [1954] EWCA Civ 1 since it had been available as at the date of the appeal (iii) after the hearing in the Court of Appeal (which attracted some publicity) the Respondent's solicitor received an anonymous letter claiming that on the basis of the report of the case it appeared that the financial position of the Claimant and her husband had been misrepresented. It was asserted that the Claimant's husband was in receipt of income from employment which might alter the approach taken to quantum in any event.
The President determined that these matters should be heard by way of preliminary issue by the judge hearing the appeal.
Judge Million's Decision
The net estate was valued at £486,000. The President directed an up-to-date valuation to be prepared for the appeal. The current valuation is just under £489,000.
Judge Million summarised the position of the Claimant and her husband thus:
"they have very small income and negligible assets. They depend on state benefits to top up their income. They live in a small house rented from a housing association. The Claimant has not worked since the birth of A (her oldest child) and has brought up (and is still bringing up) the family."
The family's total income exclusive of benefits in 2006/2007 was £20,386, namely (1) £4,164 H's self employed earnings (2) £1,878 child benefit (3) £8,112 tax credits (H's working tax credit, and child tax credit) (4) £900 expenses set against H's earnings (5) £240 notionally paid to the Claimant for her bookkeeping work with regard to H's earnings (6) £5,092 housing and council tax benefit.
There was capital available by way of joint family savings of which the Claimant's share was between £2,000 and £3,000. She has no pension provision.
The family's current standard of living was low. The Claimant had never had a holiday, much of what she has is old and/or second-hand, she has difficulty in affording clothes for the children, and is limited in the food that she can buy. She set out schedules setting out what she thought would be reasonable expenditure for her to enjoy a reasonably comfortable life and what she thought would be reasonable expenditure to lift her home and its contents to a modern standard. It is now submitted on behalf of the Claimant that the Judge wrongly thought that these schedules were served during the trial but in fact they had been served with the original witness statements but updated shortly before trial. It is the case for the Claimant that these schedules were filed to demonstrate the sorts of things which were unaffordable on the Claimant's...
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Ilott v Mitson (1st Respondent) Michael Peter Lane (personal representatives of Melita Jackson Deceased) (2nd Respondent) The Blue Cross Animal Welfare Charity (3rd Respondent) Royal Society for The Protection of Birds (4th Respondent) Royal Society for The Prevention of Cruelty to Animals (5th Respondent)
...2007, DJ Million made an award of £50,000 in favour of the appellant, the adult child of the deceased. On 3 March 2014, Parker J ( [2014] EWHC 542 (Fam), [2015] 1 FLR 291) dismissed her appeal from that order. The issues on this appeal are whether the order of DJ Million should have been se......
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