Moody v Stevenson
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WAITE,LORD JUSTICE MUSTILL |
| Judgment Date | 12 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0712-4 |
| Docket Number | 91/0751 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 1991 |
[1991] EWCA Civ J0712-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORKSOP COUNTY COURT
(HIS HONOUR JUDGE KELLOCK, Q.C.)
Royal Courts of Justice
Lord Justice Mustill
and
Mr Justice Waite
91/0751
MISS BRYONY J. CLARK, instructed by Messrs Tracey Barlow Furniss & Co. (Retford, Nottinghamshire), appeared for the Appellant (Applicant).
MR CLIVE SMITH, instructed by Messrs Williamson Wilson (Retford, Nottinghamshire), appeared for the Respondent (Respondent).
This is the judgment of the court in an appeal from an order of Judge Kellock in the Worksop County Court of 24th January 1991 dismissing a widower's claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("The 1975 Act"). The estate was not substantial and the facts, though unusual, were not especially complicated. The difficulty for the judge arose, as it commonly does in cases of this kind, from the need to apply to relatively straightforward family circumstances the sophisticated machinery of the 1975 Act, which combines elements of fact-finding, discretion and hypothesis in a formula of some elaboration. The course we propose, therefore, to follow in this judgment is firstly to summarise the facts as found by the learned judge, secondly to analyse the approach to those circumstances which in our judgment was required of him by law, thirdly to determine the range of response that was open to any court adopting that approach, and finally to assess, by that yardstick, the grounds in fact relied on by the learned judge when dismissing the application. In following that course we do not intend to enunciate any principles that might run the risk of fettering future exercises of the very wide discretion which this Act confers, but rather to pass on to others who may find it as helpful as we have done, the fruits of the careful analysis of the scheme and purpose of the 1975 Act and the relevant case law with which counsel have assisted us.
The testatrix was born in 1905. She was first married to Mr Hall, who had a daughter by a previous marriage born in 1936. She is the respondent Mary Stevenson, who on her father's marriage to the testatrix became her stepdaughter. From October 1950 the whole family lived at 5 Wright Wilson Street, Retford ("the property") which was conveyed to the testatrix in that year by her mother under a deed of gift. The respondent left that home in 1954 on her marriage. Mr Hall, her father, died in July 1967.
In October 1971 the testatrix, at the age of 66, married the applicant, who was then 61. He worked as an excavator driver until he reached retirement age in 1975. Thereafter the spouses lived on their pooled pensions. In 1980 the testatrix's brother died, and her share of his estate (some £7,160) was put into the name of the applicant and drawn on from time to time by him for the benefit of the joint household.
In 1984 the testatrix became agoraphobic and senile and had to be moved permanently to a nursing home. The applicant continued living in the property, but had no further contact with the testatrix. The respondent, living at a distance in Epsom and bringing up her own family, did not visit her stepmother, but over the years had maintained a degree of contact with her. The testatrix therefore found herself, at the age of 79, in a sad plight: physically and mentally frail and isolated from her family and the world outside her nursing home.
She was, however, sufficiently in command of her faculties to possess testamentary capacity, and on 21st June 1985 she made a will which was drawn up by a solicitor on her instructions. The will was in the simplest terms, appointing the respondent the testatrix's sole executrix and legatee of her entire estate. The will included the following additional paragraph:
"I DECLARE that I have made no provision in this my Will for my husband Sydney Moody as I consider he has adequate resources of his own".
On 18th August 1988 the testatrix died. The judge expressed some criticism both of the applicant and the respondent for the isolation experienced by the testatrix in the last four years of her life, but he recognised that the onset of the symptoms of the testatrix's mental deterioration in the one case, and problems of distance in the other, provided each with some excuse for their lack of attention.
The net estate was certified for probate purposes by the respondent (who proved the will as sole executrix on 7th November 1988) as not exceeding £40,000. The estate's sole assets consisted of the property, and a sum of £1,000 or thereabouts representing the balance of the testatrix's building society account after payment of the costs of administration. There was no evidence before the judge or before this court as to the current value of the property at the date of the hearing, but argument in the appeal hearing has proceeded on the basis that the property was a modest dwelling, free of mortgage, with an open market value in the region of £45,000.
The respondent's four children are now grown up and married. Her own marriage has been dissolved, and she now lives alone, at the age of 55, in a council house in Epsom. She has no savings. Her rent is paid direct by social security. Her evidence to the judge was that out of an income of £45 per week from state benefit and pension she has to provide £15 per week for her outgoings leaving £30 per week for food, clothing and holidays.
The applicant is 81, and in reasonable health for his age. He has savings of about £6,000. He lives on his state pension supplemented by a small occupational pension from his former employment. He looks after four dogs, formerly pets of the testatrix.
In September 1989 the respondent (having assented to the vesting of the property in herself as sole legatee) took out a summons in the Worksop County Court for possession of the property against the defendant, who responded in December of that year by taking out an application in the same court for relief under the 1975 Act. No objection was taken by the respondent to the fact that such an application was, or may have been, out of time.
The cross-proceedings were heard together by Judge Kellock on 24th January 1991. In form his order (which has been stayed pending the outcome of this appeal) was a simple possession order. It is accepted by both sides that it must also have involved, in substance, an order dismissing the application under the 1975 Act, and it is from such dismissal that the appellant applicant now appeals to this court.
The task of judging the reasonableness of a testator's posthumous provision for his dependants is seldom easy, and frequently becomes even more difficult when the estate is small and the resources available to answer competing calls on the deceased's bounty are limited. These difficulties are not eased by the fact that the governing legislation imposes on the court a duty of inquiry embracing a consideration not only of the imponderable but also of the hypothetical. We have found it helpful, indeed essential, in the present case to examine the relevant statute and case law in some depth, for the purposes of determining exactly what approach was required of the judge by law to assist him in the task, which he had very evidently and properly set himself, of achieving justice between these two people of very limited means with competing claims to a small property which represented for the one the only means of retaining in old age a familiar roof over his head, and for the other the only means of achieving in middle age a standard of living that would add some comfort to mere subsistence.
Legislative incursion into the freedom of testamentary disposition, cherished for many years in England and Wales, began with the Inheritance (Family Provision) Act 1938 ("The 1938 Act"). That gave a restricted class of dependants (spouses, infant sons, unmarried daughters and adult children under disability) a right to apply for maintenance from the deceased's estate, but placed stringent limits on the amount that might be awarded. Capital payments (save in the case of very small estates) were prohibited, and periodic maintenance was restricted to a ceiling equivalent to two thirds of the income of the net estate. Following the recommendations of the Royal Commission on Marriage and Divorce chaired by Lord Morton of Henryton (whose contribution to the case law as a puisne judge will be mentioned later) the range of potential claimant was enlarged to include a divorced spouse by the Matrimonial Causes (Property and Maintenance) Act 1958.
The Family Provision Act 1966 substantially enlarged the powers of the court in regard to maintenance awarded posthumously to dependants by abolishing the ceiling for periodic payments and authorising lump sum capital payments without limit.
The most recent (and most radical) change was effected by the 1975 Act, following consideration of the topic by the Law Commission. In addition to enlarging still further the category of child (adult or minor) of the deceased or "of his family" who might apply for maintenance, the 1975 Act placed the claim of a surviving widow or widower upon an entirely new footing by abolishing the requirement that such a claim should be for maintenance only, and casting it much more widely as a claim for "reasonable financial provision", regardless of whether or not such provision was required for the purposes of maintenance.
The long title of the 1975 Act (which repealed the 1938 Act in its entirety) describes it as "An Act to make fresh provision for empowering the court to make orders for the making out of the...
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...In answering both questions, the recorder directed himself by reference to the observations of this court (Mustill LJ and Waite J) in Moody v. Stevenson [1992] Ch. 486, where consideration was given to the second part of section 3(2) of the Act: "… and, in the case of an application by the ......
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