Analysis
The claimant sisters (aged 61 and 68) applied under the Inheritance (Provision for Family and Dependants) Act 1975 for provision out of the estate of their late father. The sole asset in the estate was the deceased’s home in which his son and sole beneficiary of his will, the second defendant (aged 72), continued to reside. The second defendant did not engage with the proceedings despite repeated service of court orders and correspondence, and concerns were raised as to his capacity to litigate. Trials were twice adjourned for capacity assessments to be undertaken, but the second defendant refused to undertake an assessment, although he did briefly respond to correspondence from the claimants’ solicitor.
The first claimant gave evidence that she had received financial support from the deceased after her divorce and to support her business when it was in difficulty, as well as evidence of her regular visits to the deceased as his health deteriorated. She suffered from numerous medical problems including ME and chronic pain secondary to osteoarthritis. She had a deficit of income over expenditure, substantial unsecured debts and a property subject to mortgage, leaving her and her husband with net assets of about £86,000.
The second claimant was a widow whose day-to-day care needs were supported by her adult children. She was diabetic, almost blind and required help dressing and feeding. She also gave evidence of the financial support she had received from the deceased and of having provided care to him in his ill health. She had no savings and relied on her pension income, but owned her home outright, worth about £365,000, which would have to be sold or subject to an equity release mortgage in order to pay for future care.
The issues to be determined were:
- (1) How should the court consider the position of the second defendant in the absence of any evidence or engagement from him?
- (2) Was there a failure to make reasonable provision for the claimants?
- (3) If so, what award should be made?
Held:
- (1) The court was satisfied, bearing in mind the presumption of capacity in s1 Mental Capacity Act 2005, that no further steps needed to be taken to assess the second defendant’s mental capacity. His correspondence though limited was coherent and comprehensible and showed he was aware of the proceedings and was able to communicate if needed. The claim would proceed in the second defendant’s absence pursuant to CPR 8.4. However, the court could not proceed on the basis that the second defendant had no financial needs. There was evidence of his income and he would have a need for housing once the property was sold. A sum should still be left in the estate to provide for his future needs (para 65(3)).
- (2) The will failed to make reasonable financial provision for either claimant. The deceased had promised to support them in the context of support they provided to him and had expressed the wish to provide a home for the second claimant. In the circumstances the failure to make any provision for them was not reasonable (para 58). Reasonable provision would be made for them in the form of a lump sum of £70,000 to the first claimant and £90,000 to the second claimant (para 65). That would provide each with a capital reserve to meet future income and maintenance needs.
- (3) Per curiam: the costs in the proceedings were disproportionately high in relation to the size of the estate. The Civil Procedure Rule Committee may wish to introduce an equivalent to r9.27 Family Procedure Rules 2010, requiring the level of costs to be recorded in the recitals to the order made at each hearing, to remind the parties of the level of costs (para 6).
Order accordingly. Submissions on costs invited in writing.
JUDGMENT MRS JUSTICE THEIS DBE: Introduction [1] The matter concerns an application by Sally Dignam-Thomas (‘first claimant’) and Julie Bebbington (‘second claimant’) dated 5 June 2021 under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’) for reasonable financial provision from the Estate of Leslie Hooper (‘the deceased’). The defendants to the …Continue reading "Dignam-Thomas & anr v McCourt & anr [2024] WTLR 105"