Matters to which the Court is to Have Regard

AuthorNasreen Pearce
Pages165-232
Chapter 7
Matters to which the Court is to Have Regard
7.1 INTRODUCTION
Once the court is satisfied on the preliminary issues, namely that: (1) the
application has been made within the time limit, or if out of time, leave to apply
has been considered; (2) the deceased died domiciled in England and Wales; and
(3) the claimant comes within the categories of persons who are eligible to make
a claim against the estate, it can go on to consider:
(1) whether the disposition of the deceased’s estate effected by the
deceased’s will or the law of intestacy, or the combination of the will
and that law, has failed to make reasonable financial provision for the
claimant;
(2) if the court determines that reasonable financial provision has not been
made, whether and in what manner and to what extent the court should
exercise its powers under I(PFD)A 1975, s 2 to make reasonable
financial provision for the claimant.
In determining whether the deceased failed to make reasonable financial
provision for the claimant and in what manner and to what extent the court should
make a financial provision order, it must have regard to the factors set out in s 3.
The issue for determination is not whether the deceased acted unreasonably, but
whether, looked at objectively and having taken into account all the factors under
s 3, the provisions made or the lack of disposition produce an unreasonable result
in not making any or inadequate provision for the claimant. If it decides this issue
in the affirmative, it must then consider whether to exercise its discretion
regarding the appropriate order it should make under s 2 (see Chapter 8) by
applying the factors set out in s 3.
There is therefore a two-stage process and in considering both stages the s 3
factors will be relevant. This approach was specifically referred to by Lord
Hughes in his judgment Illott v The Blue Cross and Others [2017] UKSC 17, [23].
166 A Practitioner’s Guide to Inheritance Act Claims
Lord Hughes also went on to elaborate on how the court should approach these
issues and to emphasise that an appellate court will be slow to interfere with the
decision of the cou rt of first instance unless it is established that the judge erred
in principle or in law. He said at [24]:
The Act plainly requires a broad brush approach from the judge to very variable
personal and family circumstances. There can be nothing wrong, in such cases, with
the judge simply setting out the facts as he finds them and then addressing both
questions arising under the Act without repeating them. Nor should there normally be
any occasion for a split hearing. Moreover, Goff LJ’s observations ought not to be
thought to mean that the approach of an appeal court should differ as between the two
parts of the process. Whether best described as a value judgment or as a discretion (and
the former is preferable), both stages of the process are highly individual in every case.
The order made by the judge ought to be upset only if he has erred in principle or in
law. An appellate court will be very slow to interfere and should never do so simply
on the grounds that its judge(s) would have been inclined, if sitting at first instance, to
have reached a different conclusion. The well-known observations of Lord Hoffmann
in Piglowska v Piglowski [1999] 1 WLR 1360 esp at 1373–1374 are directly in point.
It is to ‘kill the parties with kindness’ to permit marginal appeals in cases which are
essentially individual value judgments such as those under the 1975 Act should be.
The present case, as it happens, is an example of much to be regretted prolongation,
and presumably expensive prolongation, of the forensic process.
7.2 RELEVANT DATE FOR CONSIDERATON OF
SECTION 3 FACTORS
The requirements of I(PFD)A 1975, s 3 are mandatory. It requires the court when
determining the issues and the matters to which the court is required to have
regard, to take into account all the matters set out in s 3(2) and to the facts as
known at the date of the hearing (s 3(5)) (see Ilott v Mitson [2011] EWCA Civ
346, [2012] 2 FLR 170, Re Coventry, Coventry v Coventry [1980] Ch 461,
Re Rowlands (Deceased) [1984] FLR 813 and Re Hancock [1998] 2 FLR 346).
The issue as to the date at which the facts fall to be assessed was raised in the
appeal to the Supreme Court in Ilott v The Blue Cross and Others [2017] UKSC
17. The court confirmed that ‘ where a court has to assess whether reasonable
financial provision has been made, and/or what it should be the relevant date is
the date of hearing’ and that if on appeal ‘the question is whether the trial judge
made an error of principle the facts and evidence must be taken as they stood
before him. And if it should fall to the appella te court to remake the decision on
the merits, as ordinarily it should not, any request to adduce further evidence will
have to be judged by ordinary Ladd v Marshall principles (see [1954] 1 WLR
1489)’ (at [25]). The co urt will therefore require up-to-date information about the
parties’ circumstances and the values of all assets, including those of the parties.
It is thus important to ensure that the evidence is updated to reflect the changes in
Matters to which the Court is to Have Regard 167
the circumstances of the parties between the commencement of the proceedings
and the date of the hearing. Where the claiman t lives overseas, evidence of the
cost of living in the foreign country should be adduced (see Witkowska v Kaminski
[2006] EWHC 1940 (Ch), [2007] 1 FLR 1547). The value of the estate should
also be updated as the court is unlikely to allow any orders to be set aside and the
matter to be reheard where there has been a fluctuation of the valuation of the
assets (see Myerson v Myerson (No 2) [2009] EWCA Civ 282, [2009] 2 FLR 147).
Having regard to the decision of the Supreme Court in Ilott v The Blue Cross and
Others (above), in the case of a claimant other than a surviving spouse/civil
partner, it is essential to ensure that the case is carefully prepared and that all the
evidence to establish what is necessary maintenance for the claimant to meet their
needs is adduced before the court. In a case where the claimant is on state benefits,
this includes up-to-date information on the benefits and credits received by the
claimant, the benefits that the claimant may be entitled to but not claimed due to
ignorance or otherwise; what impact any capital payments would have on these
benefits and credits a nd the housing needs of the claimant, and how best to
formulate the client’s case to achieve the best outcome. The ill thought-out
submissions made on behalf of Mrs Ilott, referred to by Lord Hughes at [37], serve
as a good example. Where it is necessary to instruct an expert to assess any
entitlement or asset, application should be made for permission to do so and for
any other directions pursuant to CPR Part 35.
As stated by Morton J in Re Styler, Styler v Griffiths [1942] Ch 387, when dealing
with the claim, the court should not:
interfere with a testatrix’s or testator’s disposition merely because the judge may t hink
that he would have been inclined, if he were in the position of the testator or testatrix,
to make some provision for a particular person. I think that the court has to find that it
was unreasonable on the part of the testatrix or the testator to make no provision for
the person in question, or that it was unreasonable not to make a larger provision.
See, also, Re Talbot [1962] 1 WLR 1113, ‘Nothing in the 1975 Act undermines
the basic proposition that a citizen of England and Wales is at liberty at his death
to dispose of his own property in whatever way he pleases’. There is no concept
of ‘forced heirship’, see for example, Ilott v The Blue Cross and Others (above),
where both Lord Hughes and Lady Hale referred to the significance attached in
English law to testamentary freedom and of the fact that the I(PFD)A 1975 did
not introdu ce a general power to rewrite the testator’s will. In Myers v Myers
[2004] EWH C 1944 (Fam), [2005] WTLR 851, Munby J (as he then was)
expressed similar views when he stated that the adult child is not entitled to
succeed because the reasons for excluding that adult child from the will may
not commend themselves to the modern judge. The question the court has to
consider is whether the provision was unreasonable. The background history may
be relevant, but the court must, when determining whether the provision is
unreasonable, apply the criteria in I(PFD)A 1975, s 3 objectively.

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