Lynn Lewis (as Executrix of the Estate of Audrey Blackwell, deceased) v Thomas Stanley Warner
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice McCombe,Lady Justice Asplin |
| Judgment Date | 19 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2182 |
| Date | 19 December 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2016/3090 |
[2017] EWCA Civ 2182
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE NEWEY
Case Nos: B00GL077 & B00GL0107
Rolls Building
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
Sir Geoffrey Vos, THE CHANCELLOR OF THE HIGH COURT
Lord Justice McCombe
and
Lady Justice Asplin
Case No: A3/2016/3090
Mr Roger Evans (instructed by Moore Brown & Dixon LLP) appeared for Mr Warner
Mr Bernard Weatherill QC (instructed by Tierney & Co) appeared for Mrs Lewis
Hearing date: 7 th December 2017
Judgment Approved
Sir Geoffrey Vos, Chancellor of the High Court:
Introduction
This is the first time that an application by an unmarried partner under the amended subsections 1(1)(ba) and 1(1A) of the Inheritance (Provision for Family and Dependents) Act 1975 (the “1975 Act”) has reached this court. This appeal also raises the questions of whether the court has jurisdiction under the 1975 Act to order that the property of a deceased person's estate be transferred to a surviving partner for full value (or possibly more than full value), and whether such a transfer is properly to be regarded as “reasonable financial provision” for the partner's “maintenance” within the meaning of those terms in subsections 1(1) and 1(2)(b) and sections 2 and 3 of the 1975 Act.
Mr Thomas Stanley Warner, the applicant partner then aged 91 (“Mr Warner”), had lived for 19 years with Mrs Audrey Blackwell (the “deceased”) at Green Avon, Twyning Green, Tewkesbury, Gloucestershire GL20 6DQ (the “property”). The deceased died on 6 th May 2014. Mr Recorder Gardner QC decided, after hearing oral evidence, that the property should be transferred out of the deceased's estate to him, in exchange for payment of £385,000. £385,000 was the amount of a second valuation obtained by the appellant, Mrs Lynn Lewis, the deceased's daughter, executrix and sole beneficiary (“Mrs Lewis”). The second valuation was £45,000 more than the initial joint expert's valuation of the property of £340,000. Mr Justice Newey upheld the Recorder's decision in a judgment delivered on 18 th July 2016.
On this second appeal, Mr Bernard Weatherill QC, leading counsel for Mrs Lewis, relied heavily on the 7-judge Supreme Court decision in Ilott v. Blue Cross [2017] UKSC 17 (“ Ilott”) delivered on 15 th March 2017, some 8 months after Newey J's decision. He submitted that Lord Hughes' judgment in Ilott supported his argument that Mr Warner could not succeed in his application when he had failed to advance a case that he needed any financial provision for his maintenance out of the deceased's estate (being significantly financially better off than the deceased, and able to afford alternative accommodation), and all he had been able to say was that he would “ like” to remain living in the property or that it was desirable for him to do so. That was, submitted Mr Weatherill, simply not enough to demonstrate that the deceased's will failed to make reasonable financial provision for his maintenance. Moreover, even though the provision of a house could, in some circumstances, amount to maintenance, paying more than full value for the property could not properly be regarded as reasonable financial provision for Mr Warner's maintenance out of the deceased's estate. There was no jurisdiction to make an order in respect of which value did not move from the estate to the applicant.
In response to these submissions, Mr Roger Evans, counsel for Mr Warner, pointed to the Recorder's decision that Mr Warner did have a need to stay in the property because of his age, disability, the length of time he had been there, the contributions he had made to the running costs of the property, and the help provided by his neighbours. The transfer of the property did, therefore, amount to reasonable financial provision for Mr Warner's maintenance. This was not a case where Mr Warner only “wanted” to stay; it was a case where he needed to do so, and the deceased had failed to make reasonable financial provision for his maintenance, by continuing to live in the property, in her will.
Before dealing with these competing positions, I shall need briefly to set out the factual background as determined by the Recorder, the relevant legislative provisions, the procedural chronology, and the passages from the judgments in Ilott upon which the parties rely. It is not actually necessary to look behind Ilott, because the relevant preceding cases are all referred to within Lord Hughes's seminal judgment.
Mr Weatherill sought to argue that we could revisit the facts, but in my judgment, in the absence of permission having been granted to appeal the factual findings of the Recorder on the basis that they were perverse or such that no reasonable judge could have made, we must consider the matter on the basis of those findings and those findings alone.
The relevant factual background as found by the Recorder
In order to explain the relevant factual background, I can do no better than cite the following passages from the Recorder's judgment:-
“13. There was no real dispute as to the relevant facts in this case. Mr. Warner, who is now aged 91 years, began living with the deceased, who was eight and a half years his junior, in about 1995, and they lived together in her house until her death nearly 20 years later. Having heard Mr. Warner, who clearly has all his mental faculties, and who I found to be a frank, direct and credible witness, and their neighbour, Mrs. Walton, I accept that during this time they lived as if husband and wife in all its aspects. … The deceased developed a form of dementia in 2012 and she went into a home for a short while, and then returned to the house with 24-hour care. Until her death the relationship between Mr. Warner and Mrs. Lewis and her husband was a friendly one.
14. Mr. Warner, who expected to die long before her, made a will leaving her a substantial sum. He frankly admitted that he would have been surprised if she had left him anything in her will that could not be found. He was quite clear that there was never any understanding that he would have any interest in her estate, nor did he claim any. Nor was there any understanding that he would be able to stay in the house or be able to purchase it in the event of her death. This was something that they never discussed. So far as their respective financial circumstances were concerned, Mr. Warner accepted that he was significantly better off than the deceased, and that he has the means to buy the house or alternative accommodation if necessary. During their time together Mr. Warner and the deceased shared the expenses of the house and he paid for the oil, which tended to be their largest outgoing.
15. When it became clear that the deceased was not going to survive, Mr. and Mrs. Lewis became concerned as to Mr. Warner's occupation of the house, and so drafted a declaration that he did not wish to make any claim for the house, which they asked him to sign. He said that he was not very happy that they felt unable to trust him but, as he was not making any claim on the house, he signed it. When they lost this and a typed replacement was prepared by Mr. Lewis, again he signed it.
16. The day after the death Mrs. Lewis asked him what he was going to do and he replied that he had better rent the house. She objected to him having his son to stay in the house whilst he grieved. She said she had been so advised by her insurance solicitors and she feared she might not be able to get the son out. There is no doubt that relations between the parties have deteriorated as a result of this litigation.
17. Mr. Warner said that he would be very unhappy and very stressed if he had to move from the house where he had spent the happiest 20 years of his life, and where he is lucky to have a doctor as a neighbour, Dr. Walton, who had arranged for him have an emergency button around his neck and is the first on call if he pushes it. Mrs. Walton confirmed that they keep an eye on him and that he comes round to their house for about 10 minutes each morning. Mr. Warner described, dispassionately and without any attempt at exaggeration, his state of health. He has a very arthritic back and the main artery in his left leg is closed. He is on medication for problems with his small intestines which produces stomach pains and side effects. He has difficulties with his hands due to carpal tunnel syndrome. I was told, by reference to a plan at 2/456, that the house is in a location where Mr. Warner has lived his long life, including the house where he was born, his former matrimonial home, the Green, his caravan park, and the village shop to which he is able to walk. I accept all of this evidence.
18. As for Mrs. Lewis's intentions in relation to the house, it seems that her views have varied from time to time. In her witness statement she accepted that 7 days after her mother's death she had told Mr. Warner that she did not want him to rent it but that he could buy it at a price the estate agent would tell them. Her husband said he could buy it for £425,000 but he had rejected this as an overvaluation. This offer was repeated in a letter from Mr. Lewis to Mr. Warner's solicitors' on 16 May 2014, and Mrs. Lewis said that if he had accepted this, the house would probably have been sold to him.
19. In her evidence she said that she wanted the house to go on to the market to get the full market value. She said that she may want to extend it or improve it prior to sale, and Mr. Lewis said that it may increase in value if the sale...
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