Re Hancock (Deceased)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE JUDGE,SIR JOHN KNOX |
| Judgment Date | 01 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0501-11 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 May 1998 |
| Docket Number | CCRTF 97/0519 CMS2 |
[1998] EWCA Civ J0501-11
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
CHANCERY LIST
(HIS HONOUR JUDGE RICH QC)
IN THE ESTATE OF THOMAS WILLIAM HANCOCKS DECEASED
Royal Courts of Justice
Strand, London WC2
Lady Justice Butler-Sloss
Lord Justice Judge
Sir John Knox
CCRTF 97/0519 CMS2
MR GRANT CRAWFORD (Instructed by Messrs Blaser Mills Winter-Taylors, Park House, London Road, High Wycombe, Bucks, HP11 1BZ) appeared on behalf of the (Fourth to Eighth Defendants) Appellants
MR JEFFREY TERRY and (1 May 1998—MISS A PRANZIOCH) (Instructed by Messrs Allan Janes, Bucks, 21–23 Easton St., High Wycombe, Bucks, HP11 1NU) appeared on behalf of the Respondent
This is an appeal from the order of HH Judge Rich QC sitting at the Central London County Court on 5th November 1996. The application to the court was made by a daughter, whom I shall call the plaintiff, under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975, (the 1975 Act), for reasonable financial provision from the estate of her father. The judge found that the will did not make reasonable financial provision for the plaintiff and awarded her maintenance of £3000 a year. The appellants are her brothers and one sister, the defendants to her application.
The deceased father, whom I shall call the father, made his last will on the 18th February, 1980. He died on 7th September 1985 aged 87, leaving a widow, three daughters, one the plaintiff, and four sons. The plaintiff is his eldest daughter and was born on the 25th April 1927. She is now nearly 71. The estate, at the time of the father's death, comprised his house in which he and his wife had lived, money and chattels to a net value of approximately £80,000 and a plot of land, called Plot 3. The land was used for the family business, Hancock Brothers, carried on at the time of his death by his four sons and his daughter Sally, the fourth to eighth defendants. Hancock Brothers were granted a formal lease of Plot 3 in 1979. By clause (4) of the will Plot 3 was devised specifically to Hancock Brothers. Its value for probate was £100,000. The father left his wife the £80,000 and the house. There was provision in clause (5) of the will that, if his wife predeceased him, the remainder of the estate was to be divided between the plaintiff, his other daughter Joan and his 7 grandchildren. By clause (6) he expressed the wish that if his wife survived him she would make provision in her will for the two daughters and 7 grandchildren.
Hancock Brothers was at all times a flourishing business. By contrast the plaintiff's circumstances had always been somewhat precarious. She had left home at the age of 19 to be married. From 1962 to 1967 she and her husband together managed a public house. She separated from her husband in 1967. Thereafter she returned to live nearby to her family and from time to time with different members of the family. In 1977 she began to live in Manchester with Mr Pearce. She shared his house and the judge found that they lived as if husband and wife. They did not marry. For a period about the time of her father's death she was employed by Hancock Brothers on a low wage in a menial position. After the death of her father the plaintiff issued a caveat but did not proceed to contest the will. Probate was granted on the 26th February 1986. She then issued the originating summons on the 26th August 1986.
In 1989, after the application under the 1975 Act by the daughter, there was a dramatic change in the value of Plot 3 and of the fortunes of those engaged in the business of Hancock Brothers. The brothers had over the years bought land adjacent to plot 3 and which adjoins the M40 motorway. Tesco's bought the land, including Plot 3 on the 4th July 1989, initially for £9 million later increased to £13 million when they obtained planning permission for a superstore. The price paid for the freehold reversion on Plot 3 was agreed to be apportioned correctly at £840,000 subject to a capital gains tax liability of £177,000. The net figure of £663,000 was substantially greater than the original probate valuation of Plot 3 at £100,000. That increase in the value of the net estate of the father transformed the plaintiff's application, even though it may be regarded as representing a windfall. The widow died after the sale to Tesco's but before the hearing of the application, and by her will the plaintiff received a legacy of £1000 and the other daughter, Joan, a legacy of £2000. The plaintiff made no application under the 1975 Act in respect of her mother's estate.
The main issues which have arisen on this appeal are
a. whether the failure of the disposition of the estate of the deceased to make any provision for a daughter aged 58 at the time of death of the father and 69 at the date of hearing was such as not to make reasonable financial provision for her and,
b. Since the judge found that, at the time of death of the deceased, it was not unreasonable for the will to have made no financial provision for the plaintiff, ought a subsequent windfall to the estate change the position and make the failure to make provision unreasonable on the subsequent facts at the date of the hearing?
Section 1 of the 1975 Act provides for a child of the deceased to apply for an order under section 2 on the ground that the disposition of the deceased's estate, in this case by will, is not such as to make reasonable financial provision for that child. A child of the deceased of any age has the right to make the application. But in respect of that child of the deceased the reasonable financial provision is limited to maintenance.
In re Coventry decd [1980] Ch. 461 in his judgment, which was upheld on appeal by this Court, Oliver J set out certain guidelines in respect of the approach of the courts to the (then) new legislation. At page 469 Oliver J considered the provisions of section 3 to which I refer below. He said at page 469G:—
"these matters have to be considered at two stages -first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant's maintenance and, secondly, in determining the extent to which the court should exercise its powers under the Act if, but only if, it is satisfied that reasonable provision for the applicant's maintenance has not been made."
The defendants have not appealed the amount awarded to the plaintiff and on this appeal this Court is only concerned with the first stage.
Section 3 (1) sets out the criteria to which the court shall have regard in exercising its powers. Those criteria include the financial resources and financial needs of the applicant now and in the foreseeable future, (section 3(1)(a). Although Mr Crawford, who appeared for the defendants, suggested that the plaintiff was not in a poor financial position, the judge found that her resources were extremely limited and that she was effectively dependent upon Mr Pearce apart from her pension. Mr Pearce's resources were also limited and were largely restricted to his pension and disability allowance. The judge said at page 11 of his judgment:—
"There is little difficulty in accepting that the provision which she presently enjoys for her own maintenance is extremely limited, that she is—in the words used in the Coventry case—in stringent circumstances and that therefore it might well be said that the resources that she has are less than reasonably required for her own maintenance. In so far as her resources fall short of such level the will does not provide for it. I think this shortfall may be measured, however, and properly should be measured by the expectations and lifestyle which she has over the years, called in the somewhat archaic language adopted in the case, "the level of maintenance appropriate to her station in life".
The defendants acknowledged that their circumstances were, as the judge held, "on a scale quite out of proportion to the circumstances which the wage earned by their sister, the plaintiff, would have made possible for her."(judgment, page 3) When he came to consider the financial resources and financial needs of the defendants under (section 3 (1)(c), he found that they had no relevant needs, which was clearly the position on the facts of this case. The size of the net estate of the deceased both at the time of death and the time of the hearing was relevant, (section 3 (1)(e). Subsection (1)(g) requires the court to have regard to:—
"any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant."
The other matters to which the court is to have regard in section 3 do not apply to this case other than subsection (5) to which I shall refer to later in this judgment.
Provision for an adult daughter.
Mr Crawford's first main submission is based upon the decision in re Coventry, (supra). He argued that re Coventry
laid down the principle that an adult child could not come within the Act unless he or she was able to establish either a moral claim by the adult child/moral obligation by the deceased parent or some other special reason to demonstrate why it was unreasonable that no or no greater provision was made for that adult...
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