SH v NH

Hearing dates: 24 April, 7 May 2020

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. Mr Justice Cohen

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

The Honourable

Introduction

I have been trying the Claimant's (whom I shall call “C”) claim under the Inheritance (Provision for Family and Dependants) Act 1975 for provision from the estate of her late father. C is aged 50 and is the daughter of the deceased.

The other parties to the proceedings are C's mother (the 1 ^st Defendant) and her brother (the 2 ^nd Defendant), the latter of whom is the personal representative of the estate of his deceased father. C and her brother are the only two children of the deceased. Their mother is the sole beneficiary of the estate of the deceased.

C has been present throughout the remote hearing and represented by solicitors and Ms Rogers of counsel.

C's mother was previously represented in the proceedings but was declared to be automatically debarred from participating in the hearing as a result of multiple breaches of orders to file acknowledgement of service and evidence. Her solicitors have come off the record. The order debarred her from relying on any written evidence in response to the claim but the day before the hearing she sent a six page hand-written letter which I have read and which can only be seen as an opposition to the claim. It was accompanied by a short letter from the home manager of the care home where she resides.

C's mother was in attendance throughout this remote hearing. She is profoundly deaf and did not hear anything that was said but had the assistance of a worker in the home who sat with her and passed her notes so that she had at least some idea of what transpired. I did not hear from her during the hearing.

C's brother listened in throughout the hearing and assisted me on matters relating to the administration and size of the estate, his knowledge of his mother's finances and circumstances, and his approach as executor to the litigation.

Chronology

C's father died in 2016 in a domestic house fire. Subsequently his widow moved out of the family home and now lives in a care home.

Apart from a short break in her early 20s, C largely lived at home with her parents until late 1999 when aged 30 she accepted a place at university to undertake a post-graduate diploma. At about that time she experienced a breakdown and began to see a psychotherapist. C says that between 2000–2010 she would see her parents every two to three weeks when she would go home to help with domestic tasks. In late 2000 C met a man who became her partner. They have been in a committed relationship for most, if not all, of the time since then.

From 2000–2007 C lived independently in East London. In 2007 she was accepted on a MA course in Sheffield. C's father set up a standing order to help fund her through her 3 year post-graduate studies by a monthly payment of £400. He also provided £2,000 towards her course fees. On occasions C would help herself to small sums of money, not more than £100 per month, from a joint account which C's father had set up in the names of C and both of her parents. There is no suggestion that in so doing she did not have her father's blessing. The account had in fact been established in or about 1995, but C did not access it until 2007.

In 2011 C and her partner decided to have their first child. C told me that her father did not approve and at that time he took her off the account. It may well be that an additional factor affecting C's father's thinking was that from 2010 C had broken off contact with her parents. Whilst she would take her father's phone calls, she did not ring her parents nor go to their home.

In the medical report prepared for the purposes of the hearing the reporting psychiatrist (Dr S) describes C as virtually estranged from her family since 2000. C says that this is inaccurate and that the proper date is 2010.

In October 2011 C and her partner had their first daughter and a second daughter was born in 2014.

C's health had plainly been problematic before 2011 when she suffered pre and post-natal depression and became unable to work. I shall revert to her health issues later in this judgment. However, her health difficulties increased, and she has not worked since the birth of her first child.

In 2017 her health problems became so profound that her partner had to leave the home which he shared with C and their children to sleep overnight elsewhere. C was unable to tolerate somebody else being in the house overnight, but he continues to visit every day and spends most of his waking hours, when not at work, in the home. It is their hope that C recovers to the extent that full cohabitation can be resumed.

On a date unknown to me but subsequent to her husband's death, C's mother moved into a care home. She is visited there approximately monthly by her son. She will spend the rest of her life in residential care and is not capable of living independently. It is plain from her communication to the court that it is a matter of great sadness to her that she does not see her daughter or grandchildren. Indeed, as I understand it C has not seen either of her parents in the last decade save at and around the deceased's funeral.

The size of the estate

If I exercise my power under s.9 of the Act and treat the deceased's severable share of property jointly held with his wife as part of his net estate, the estate consists of the following:

i) The deceased's interest in the family home which was jointly owned by him and his wife, C's mother. This has been valued in the past at in excess of £900,000 but two recent valuations put it at around £700,000. I am invited on behalf of C to assume a valuation at the higher figure but I can see no basis for so doing.

ii) There is approximately £127,000 in accounts which were held jointly by the deceased and C's mother.

iii) After payment of expenses and the executor's costs of these proceedings and of dealing with the estate there is approximately £142,000 standing in the executor's account in the deceased name.

Thus, I take the estate inclusive of the deceased's interest in the jointly held property, on the assumption of the home being worth £700,000, as being £350,000 + £63,000 + £141,000 = £554,000.

The position of the parties

Claimant:

C says that she has a series of needs to be met which I shall deal with in the order of priority which she adopts. First, she says that she needs a home. She is living in a two-bedroom rented flat, the rent of which is currently £590 per month. It is on an estate which is being emptied by the landlord and C says that she faces persistent low-level harassment from the landlord and his agents. The accommodation is plainly less than ideal, comprising as it does a small bedroom which the children share by use of bunkbeds and her own bedroom and a living room. She says that she would like to buy a two-bedroom flat. In her statement she put the cost of this at £375,000 – 500,000 but curiously only produced property particulars for properties in the bracket £450,000 – 525,000. When I said that I required particulars in the lower part of the bracket I was provided with a number of property particulars which included two at £380,000, one with two bedrooms and one with three bedrooms, which C readily accepted would meet her needs.

Next in her order of priorities was a fund to provide for continuing psychological therapy which she has been advised is essential. It is thought likely that this would take 3 years at a cost of between £9,900 – 19,800 with possible psychiatric oversight at a further cost of £600 – 3,600. Only with such help is it thought that C would be ready to face the world again and regain her earning capacity.

Her third requirement was for a small capital sum to replace her car which is ancient and unreliable and to purchase new white goods, which is likely to be unnecessary if she moves into a property in which they are fitted.

Her fourth requirement was for an income fund to meet the shortfall in her living expenses. At the moment her income is limited to child benefit and universal credit in the total sum of just over £1,000 per month. This calculation by the Benefits Agency assumed that her partner is living with her and able to contribute his wages towards their expenses. However, he is not living with her for the reasons explained and most of his income goes on his own accommodation and living costs. I deal with this further at paragraph 66(ii) of this judgment but without a contribution from him, her shortfall is running at £1,338 per month. As a result, she asks for a 3 year maintenance fund of some £48,000. If I am against C on her wish for a home, C asks for an enhanced income fund to provide for a more comfortable standard of living.

C has incurred substantial costs in these proceedings. Excluding the sum of £14,587 which C's mother has been ordered to...