Fennessy v Turner & anr [2022] WTLR 1295

Analysis

The claim concerned the estate of Hazel Valerie Fennessy who had died on 2 February 2020 at the age of 78. The claimant was the deceased’s son. The deceased’s other child, Heidi, predeceased her by approximately six weeks.

The deceased’s will dated 24 January 2012 left her entire estate to Heidi and appointed her as sole executrix. It provided that if Heidi predeceased then the whole estate was left to the defendant, June Turner, who was also appointed as sole executrix.

Probate was granted on 26 October 2020. The value of the estate was stated as £342,075 (gross) and £336,089 (net). The most recent estate accounts showed £360,371.63 as available for distribution. That included £84,380.10 received by the deceased’s estate under the terms of Heidi’s will.

The claimant had worked as a coalman and HGV driver before moving to Cornwall. At the time of the trial he worked part-time in a public house.

The deceased and Heidi had remained close throughout their lives. Heidi had suffered from a debilitating illness and was unable to live independently. She had lived together with the deceased.

There was no evidence of any serious dissention with the family until 2011. In 1988 the claimant’s father had granted him a 25-year lease of a coal yard at a peppercorn rent. The freehold of the yard had then been transferred to Heidi. The claimant had also been informed by the deceased and Heidi that he would inherit everything once they had died. In 2011, following Heidi having been taken into hospital, there was a family discussion about the claimant moving in with the survivor of the deceased and Heidi in the event that one died. He rejected the idea and made an ‘unwise’ remark about boarding the property up. This led directly to the terms of both the deceased’s and Heidi’s wills. There was no estrangement at this point and the claimant was not told of the terms of the wills.

In 2019 the claimant or his son, who had taken over the coal business, applied for planning permission over the coal yard, signing a declaration that they were the freehold owner of the site. Heidi became aware of this and determined the tenancy, selling the site to a third party. From that point Heidi wanted to cut off contact with the claimant and his family. Shortly before her death Heidi prepared a document written and signed by her. It stated that the claimant and his family were not to get any of her or the deceased’s money or possessions. The document was handed to the defendant by the deceased, but the court was not persuaded that the deceased knew of the contents of the document, which was not signed by her.

Held:

1. (1)Three points from Ilott v Mitson [2017] warranted specific mention:
   1. (a) claims had to be resolved on a case-by-case basis and the level of maintenance fell to be assessed on the facts of each case;
   2. (b) the word ‘maintenance’ connotes only payments which, directly or indirectly, enabled the applicant to discharge the cost of his daily living at whatever standard of living was appropriate to him; and
   3. (c) there is no need for a claimant to establish a moral claim.
2. (2) Considering the s3 of the 1975 Act matters:
   1. (a) The evidence clearly established that the claimant was in necessitous circumstances. His only assets were a motorhome in which he lived, valued at £5,000, and savings of £3,500. He earned £525.50 per month from his part-time employment and it was accepted he could not increase his hours. He suffered badly from osteoarthritis. He lived exceptionally frugally and was dependent on the goodwill of the landowner on which the motorhome was parked for not charging rent. The motorhome was not adequate accommodation.
   2. (b) The defendant had not advanced any case on the basis that she had a need for the money in the estate.
   3. (c) The indications to the claimant that he would inherit, which were never explicitly withdrawn, gave rise to a moral obligation which was a material factor. Further, although the claimant was an adult son, he could not presently be said to be capable of living independently. There was no suggestion that the deceased had any obligations towards the defendant.
   4. (d) The size of the estate meant that it could easily meet the proposed award and still leave a substantial sum to be dealt with in accordance with the terms of the will.
   5. (e) The claimant’s osteoarthritis was a relevant factor in terms of his earning capacity and needs.
   6. (f) The deceased and Heidi’s attempts to cut themselves off from the claimant in 2019 probably much more reflected Heidi’s wishes than those of the deceased. The claimant wanted to continue to have a normal relationship with the deceased.
   7. (g) Taking the factors and circumstances into consideration, the will did not make reasonable financial provision for the claimant.
3. (3) There were several elements to the award:
   1. (a) A sum of £40,000 was awarded in respect of income deficit calculated to the age of 84, being the claimant’s expected life expectancy.
   2. (b) A sum of £120,000 was awarded to permit the claimant to rent accommodation for the next ten years. It was not considered appropriate to base this on life expectancy, given the vagaries of future circumstances.
   3. (c) No reduction for early receipt was appropriate given the present combination of high inflation and low interest rates.
   4. (d) The sum of £17,500 was awarded for the purchase of furniture and white goods for the new accommodation.
   5. (e) It was appropriate in principle for the success fee to be added to the sum to be paid out of the estate.

JUDGMENT MR RECORDER CAMERON Introduction [1] This claim comprises an application under s1(1) of the Inheritance (Provision for Family and Dependants) Act 1975 in respect of the estate of Hazel Valerie Fennessy who died on 2 February 2020 at the age of 78. [2] As in many cases which involve the consideration of family histories, …

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