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Post Ilott Provision - Marisa Lloyd

I was recently involved in the case of Nahajec v Fowle [2017] EW Misc 11 CC in which judgment was handed down on 18th July 2017.This was possibly the first case of its kind under the Inheritance (Provision for Family and Dependants) Act 1975 since the Supreme Court decision in Ilott v Blue Cross [2017] UKSC 17. The facts were reminiscent of those in Ilott involving an estranged daughter who had had little contact with the deceased for many years preceding his death. Read the full transcript of the judgment

The claimant was one of three children of the deceased. She was the only child of the deceased’s second marriage, but had two half-brothers from the deceased’s first marriage. One of her half-brothers, Mark Nahajec had made a separate claim which was settled for £22,000 after being consolidated. Her other brother Philip Scott Nahajec (“Scott”) made no claim.

The deceased's relationship with the claimant had broken down shortly after her mother separated from him in 1996. On her account, there had been no relationship between the claimant and the deceased until about 2007. The relationship was rekindled for a period of around 2 years after she contacted the deceased. It then broke down again allegedly when the deceased disapproved of her choice of boyfriend. Since her mother and the deceased had separated, the deceased failed to answer letters she had sent to him as a child and made no efforts to communicate with her.

The claimant alleged that from 2009 she had tried to re-establish the relationship, but had been rejected by the deceased. It was not disputed that the absence of a relationship between her and the deceased was entirely his choice.

The deceased had known the defendant Mr Fowle since he was a child in 1969. Their relationship spanned both their working and social lives and culminated in the defendant caring for the deceased during his time of ill health. The deceased’s Will left the entirety of his estate to the defendant (also sole executor). The Will was accompanied by a letter of wishes which stated that the deceased had not seen or heard from any of his children for 18 years. The deceased also stated his belief that “all of my children are of independent means ... and are, to my knowledge, sufficiently independent of means not to require any provision from me”. The letter of wishes concluded that the deceased did not feel it was necessary or appropriate to make provision for his children in his Will.

The net value of the estate at the time of the hearing was around £264,000.

The claimant brought her claim under the 1975 Act for reasonable financial provision. The court had to consider what would be reasonable in all of the circumstances for the applicant to receive for her maintenance. In determining the claim, the judge considered all of the factors in section 3 of the 1975 Act.

At the date of the hearing, the claimant was in debt and despite having paid employment with two separate employers had limited income which did not cover her outgoings. One of her jobs was in a veterinary practice. The Claimant gave compelling evidence that she wished to train as a veterinary nurse in order to improve her financial situation and pursue a career in which she was passionate. Whilst she did not have the requisite GCSE grades to apply for the course she stated that she wished to study to get sufficient grades to make such an application. In order to assist any future application, the claimant worked around 15 hours per week on a voluntary basis in a veterinary practice to gain relevant experience.

Whilst section 3(3) of the 1975 Act was relied on by the claimant’s representative to assist in her claim for education and training, HHJ Saffman did not accept that it assisted her in this case. Section 3(3) required the court to have regard to the manner in which the applicant was being or in which he might expect to be educated or trained. At the time of the deceased death, the claimant was neither being trained nor expected to be trained at the expense of her father. On the facts of this case a consideration of the training element was regarded under section 3(1)(g) of the 1975 Act.

In relation to a “moral claim”, HHJ Saffman recalled Lord Hughes’ comments in Ilott that although it was not necessary for an adult child to show a moral claim upon the estate of the deceased, it would be difficult for a financially independent adult child to be successful in such a claim without showing some other special circumstance, such as a moral obligation, that would warrant an award under the 1975 Act. HHJ Saffman was impressed by the claimant’s evidence at trial and believed her account of the circumstances of her relationship with her father which was supported by witness evidence from Scott. He saw the Claimant as “a daughter who has very much regretted the absence of a relationship with her father” and as a daughter who had tried to rekindle the relationship. He was satisfied that the claimant’s claim was based on more than simply the qualifying relationship to which Lord Hughes referred in p20 of Ilott. It was accepted that there was no relationship between the claimant and her father but found that this was because the deceased appeared to be stubborn and intransient, which was through no fault of the claimant.

Limited weight was given to the letter of wishes which, whilst recognised as important, was premised on the mistaken belief that the deceased’s children were sufficiently financially independent not to require any provision under his Will. Further whilst the deceased stated that he had not seen his children for 18 years, this was inconsistent with evidence from the claimant and Scott that they had seen the deceased since his separation from the claimant’s mother.

HHJ Saffman concluded that the claimant was leading “a rather frugal existence” and only making ends meet with the help of expensive payday loans, even though in evidence she conceded that she could cope financially going forward if her debts were paid off. He accepted that she was “far from well off” and that she was not significantly profligate. He also accepted that she had a genuine aspiration to improve herself by undertaking training to become a veterinary nurse.

In his judgment HHJ Saffman held that the Will failed to make reasonable financial provision for the claimant and he found that an appropriate award was £30,000 (11.3% of the net estate), as against the claimant’s claim of approximately £70,000.

There have been many articles post the Supreme Court decision in Ilott regarding the implications of the judgment. In his judgment, HHJ Saffman spent some time discussing Ilott and it’s journey to the Supreme Court, however, he made it clear that his decision was based on consideration of the section 3 factors as applied to the facts of this case, and not on the basis that District Judge Mullion reached his decision in Ilott on essentially similar facts.

This case merely highlights the fact that despite some sensationalist headlines about testamentary freedom post Ilott, it is still possible for adult child claims under the 1975 Act claim to be successful where they can show special circumstances that warrant an award. In the case of estranged adult children, it may assist if they can show a history of attempts to reconcile or if they are able to give convincing evidence that the estrangement was through no fault of their own but solely or largely due to the behaviour or temperament of the deceased.

The financial basis of the claimant’s case was that she needed “maintenance” to undertake further qualifications and training to become a veterinary nurse and that the funds awarded would enable her to pursue this wish. If successful she would then be in a better position to support herself going forward. Whilst recognising that an award would be confined to maintenance needs, HHJ Saffman referring to the broad definition of maintenance in re Dennis Deceased (1981) 2 All ER 140 (p145-146) held the view that this could “include monies that would enable the claimant to undergo her retraining.” (p101)

In terms of the status of a letter of wishes, the case confirms that whilst a letter of wishes will be an important factor for consideration, it will not necessarily be the determining factor. A letter of wishes stating reasons for excluding adult children from a provision in the will, however elaborate, do not override the provisions of the 1975 Act and will be considered alongside the other section 3 factors.

18/09/2017
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