Lomax & ors v Greenslade [2019] WTLR 171

Analysis

The three adult children of a Mr Lomax brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against Ms Greenslade, the sole executor and beneficiary of Mr Lomax’s estate.

At trial HHJ Bailey concluded that the estate, which comprised a single property in London valued at £699,000, failed to make reasonable provision for the three children. He decided that Ms Greenslade should receive £69,000, being the sum of £20,000 which the deceased intended to give her under a draft will that was never executed, and the sum of £49,000 to cover the costs of proceedings and her work as executor. The remainder of the estate (£630,000) was to be divided equally between the three children of the deceased.

In the days before the trial Ms Greenslade had applied for the trial to be adjourned on the basis of her ill health. She provided (via her daughter) substantial medical evidence that due to mental illness she was not fit to attend court. Unfortunately, due to an administrative error at the court some of the more significant pieces of medical evidence were not provided to the trial judge, and he decided that the evidence before him was not sufficient to warrant an adjournment.

Ms Greenslade appealed against the judgment on five grounds, one procedural and the others relating to the substantive award made by the judge. The grounds were that:

1. a) The judge ought to have adjourned the trial due to the medical evidence that she was unable to attend trial.
2. b) The judge did not exercise his discretion properly, as despite the different financial circumstances of the three children, he had divided the estate equally between them.
3. c) The judge had calculated the value of the estate incorrectly: it was in fact worth £636,000. Ms Greenslade sought to adduce new evidence – estate accounts – which showed this.
4. d) The judge erred in taking account of a draft will apparently prepared by the deceased on his computer shortly before his death.
5. e) The draft will was a forgery; this ground was raised by Ms Greenslade for the first time at the appeal hearing.

In respect of the first ground of appeal, and given that the trial judge was not shown relevant evidence relating to the application to adjourn, the court also considered whether the judgment should be set aside pursuant to CPR r39.3. No application under r39.3 had been made.

Held:

1. 1) The medical evidence provided by Ms Greenslade meant that she had a good reason for not attending the trial. However, she had not made any application under CPR r39.3, despite instructing solicitors after the trial, and so any such application would fail on the basis that she had not acted sufficiently promptly upon learning of the judgment.
2. 2) The judgment showed that HHJ Bailey had carefully considered the financial position of each of the three children, and had come to a decision which he was entitled to reach on the evidence before him. There were no grounds on which to interfere with the exercise of the judge’s discretion.
3. 3) The court accepted the updated valuation of the estate provided by Ms Greenslade and reduced the sums payable to each of the children accordingly.
4. 4) The judge was entitled to take into account the draft will as part of the statutory criteria under s3 of the Inheritance (Provision for Family and Dependants) Act 1975, and was right to do so.
5. 5) The allegation that the draft will was forged was not made out, and in any event should have been raised long before the hearing of the appeal.

JUDGMENT HENRY CARR J: [1] This is a claim under the Inheritance (Provision for Family and Dependants) Act 1975. It is a claim by the children of the deceased, for whom in a will dated 8 March 1997 no provision was made by their father, a Mr Lomax. The defendant and appellant, Ms Nora Isabella …

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