Rochford v Rochford [2021] WTLR 951

Analysis

The claimant was the daughter of the deceased and the defendant was the sister of the deceased. The deceased had made a will dated 13 September 2017. By that will the deceased had left £25,000 each to the claimant, the claimant’s son and another sister of the deceased. The remainder was left to the defendant.

The net estate was valued at around £245,000. The defendant stood to receive approximately £193,000 less legal fees.

In 1968 the deceased had separated from the claimant’s mother. Thereafter the claimant had a difficult relationship with the deceased. Prior to the birth of the claimant’s son in 1998 she had enjoyed a good standard of living and had a reasonably well-paid job. However, she was developing a spinal degenerative disease which in about 1999 forced her to give up work. Since then she had lived principally on the proceeds of an income protection scheme. In 2004 she had separated from her partner.

The claimant’s relationship with the deceased was fraught. Just before Christmas 2016 the deceased wrote to her in terms that brought matters to a head. He made a further will in March 2017 leaving his residuary estate to the defendant whereas it had been left to the claimant in his will of 2011. He made his final will after his partner had died. The solicitor’s attendance for his final will showed that he had been advised of the risk of a claim under the 1975 Act. He did not wish to leave anything to the claimant.

In the remaining few months of his life in 2018 the deceased’s relationship with the claimant had grown closer before he died on 14 August 2018.

The claimant’s income was around £2,000 a month. Her spending was overall modest and reasonable. She owned outright a three-bedroom flat. She lived in reasonable comfort. However, in January 2023 when she turned 60 her income protection scheme would cease. From then until she became entitled to her state pension in 2030 her income would be about £1,000 a year. During that period she would have an annual shortfall of approximately £20,000 a year.

Held:

1. 1) The income shortfall of approximately £140,000 in the seven-year period engaged s3(1)(a) of the 1975 Act. Re Coventry [1980] applied. Beyond 2030 the court could not conclude that s3(1)(a) was engaged as it was not obvious what her resources and needs were. It was not therefore the foreseeable future.
2. 2) Depending on the outcome of the litigation the claimant may incur a success fee of approximately £60,000. Such a fee was in principle to be taken into account in assessing needs (Re H [2020] applied). Some allowance needed to be made for that liability.
3. 3) Under s3(1)(b) the defendant’s financial position was reasonably comfortable. She had a state pension and a private pension. She owned her own house mortgage-free and an adjoining field of approximately three acres. She was 75 with no dependants. Any inheritance she received could properly be regarded as a windfall.
4. 4) Section 3(1)(d) (obligations and responsibilities of the deceased) had little weight. There were no obligations or responsibilities towards the defendant. Promises to the claimant of ‘one day this will all be yours’ did not give rise to an obligation or responsibility.
5. 5) The size and nature of the estate (s3(1)(e)) was clearly important as it was not possible to provide for the claimant without effectively exhausting the estate.
6. 6) Section 3(1)(f) (any physical or mental disability of the applicant) was a very important factor. The claimant had been unable to work due to ill health since she was 36. If she had continued working she would have worked until she was at least 60 and built up a much better pension provision.
7. 7) In considering s3(1)(g) (any other matter including conduct), the court noted that the claimant had made every reasonable effort to keep in touch with her father. This gave her something of a moral claim.
8. 8) The court concluded that the will did not make reasonable financial provision and that the appropriate order was a lump sum order to provide for an additional £85,000.
9. 9) The defendant was ordered to pay costs on an indemnity basis from the outset of the dispute to the making of a Part 36 offer by the claimant. This was on the basis that she rebuffed an early offer to mediate by the claimant. The defendant sought to justify this on the basis that she was concerned about the adequacy of disclosure. In what was essentially a family dispute with a relatively modest estate, it was very much in the interests of all concerned that there should be a mediation at the earliest possible opportunity. The defendant had taken a somewhat high-handed approach to the proceedings which had no doubt contributed to the length of them and the costs incurred.
10. 10) The Part 36 offer had not been accepted and for the period after that CPR 36.17(4)(b) provided that costs must be awarded on the indemnity basis. Taking into account the very low interest rates prevailing throughout the proceedings, interest was awarded at 5% on both principal and costs.

JUDGMENT RECORDER WILLIAMSON: [1] In these proceedings the Claimant, whom I will refer to as Lynne, claims under the Inheritance (Provision for Family and Dependants) Act 1975 which I will refer to as the Act, against the estate of her late father, Kenneth Rochford. I will refer to him as the Deceased. [2] The Defendant …

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