Baynes v Hedger & Anor [2009] EWCA Civ 374

[2009] EWCA Civ 374Case No A3/2008/1891
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, CHANCERY DIVISION
Mr Justice Lewison
HC07C01001
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 May 2009
Before
THE CHANCELLOR OF THE HIGH COURTLORD JUSTICE LONGMORELORD JUSTICE GOLDRING
Between
BAYNESAppellantHEDGER & ANRRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
MR THOMAS DUMONT (instructed by Messrs Sears Tooth) for AppellantMR JEFFREY TERRY (instructed by Messrs Allan Janes) for Respondent 3MS EMILY CAMPBELL (instructed by Messrs Sheridan) for Respondent 4Hearing Hearing date : 22 April 209
JudgmentThe Chancellor:Introduction
[1]By her will dated 6th July 1977, as varied by two codicils dated respectively 19th November 1999 and 29th October 2002 Mary Spencer Watson (“Mary”) appointed the first and second defendants and respondents to this appeal to be her executors and trustees (“the Executors”). She bequeathed £2,500 to her god-daughter, the claimant and appellant, Henrietta Baynes (“Hetty”) and other small pecuniary legacies to various friends. She specifically devised her freehold Dunshay Manor Estate, Dorset to the third defendant and respondent the Landmark Trust (“Landmark”) absolutely. She bequeathed the residue of her estate to her executors and trustees on the usual trusts for sale and conversion. She directed them to pay the income thereof to the mother of Hetty the fourth defendant and respondent Margaret Baynes (“Margot”) for her life with reversion equally to her other four children “but not Hetty because she has already benefited”. One of Margot’s children predeceased Mary; the remaining three are the 5th, 6th and 7th defendants and respondents.[2]Mary died a spinster aged 92 on 7th March 2006. Probate of her will and codicils was granted to the Executors on 20th November 2006. For that purpose the net estate of Mary was sworn to be of a value of £2,846,875. The value attributed to the Dunshay Manor Estate was £2,380,000. The balance comprised the value of business assets, chattels and investments and cash after the payment of the debts funeral and testamentary expenses.[3]On 29th December 2006 Hetty issued proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 seeking an order that reasonable provision be made for her out of the estate of Mary by way of a lump sum or in such other way as the court should think fit. Hetty contends that she is entitled to maintain such a claim as “[a] person....who immediately before the death of [Mary] was being maintained, either wholly or partly, by [Mary]..” within s.1(1)(e) of the Act. If she is, then she has to establish that “the disposition of [Mary]’s estate effected by [her] will..... is not such as to make reasonable financial provision for [her]..”. If Hetty establishes that condition then it is for the court in the exercise of its discretion to determine whether to make any and, if so, which of the orders described in s.2. In relation to both the second and third issues the court is to have regard to the various matters mentioned in s.3. Such matters include the financial resources and needs, both present and foreseeable of all applicants and beneficiaries of the estate of the deceased, the size and nature of the net estate, any physical or mental disability of any applicant or beneficiary and “any other matter, including the conduct of the applicant...which in the circumstances of the case the court may consider relevant” (paragraph (g)).[4]In due course a claim under the Act was also made by Margot. Margot was diagnosed as suffering from Alzheimer’s disease in 2000 and her condition has progressively deteriorated since. Margot’s claim was advanced under s.1(1)(e). In addition she claimed under s.1(1B) on the grounds that not only was she living in the same household as Mary but also was living as her civil partner.[5]These claims came before Lewison J. After a seven day hearing in June and July 2008 he gave judgment on 14th July 2008 dismissing both of them. There is no appeal in relation to Margot’s claim and I need say little more about it. In the case of Hetty the judge concluded for reasons I will describe in detail later that(1) she was entitled to pursue her claim under s.1(1)(e), but that(2) she had not established that the will of Mary had failed to make reasonable financial provision for her. In those circumstances he did not go on to consider what order for her provision should be made. At a later hearing on 23rd July 2008 Lewison J refused the application of Hetty for permission to appeal.[6]On 1st August 2008 Hetty issued her notice of appeal. Rimer LJ gave her permission to do so on 25th November 2008. On 30th March 2009 Landmark issued a respondent’s notice out of time seeking to uphold the judge’s order on the additional ground that Hetty was not entitled to make the claim at all because on the judge’s own findings she did not come within s.1(1)(e). An extension of time was sought at the hearing and opposed by counsel for Hetty on the ground that the notice was weeks out of time and no good reason had been given for the failure to give it in time. But it was not alleged that Hetty or her counsel had sustained any prejudice or that the respondent’s notice raised any points not canvassed in the court below. Counsel for Landmark frankly accepted that the need for a respondent’s notice had not been appreciated until the preparation for the hearing of Hetty’s appeal.[7]We granted the extension sought and indicated that we would give our reasons in our judgments in due course. For my part I agree with counsel for Hetty that no good reason had been given for the omission to serve the notice in time. But, not only was counsel for Hetty not taken by surprise, the arguments on that point and the points raised on the appeal are so interwoven that it would be unrealistic to limit them to those relevant to the second point alone.[8]Accordingly there are three issues on this appeal, namely:(1) Was Hetty “[a] person....who immediately before the death of [Mary] was being maintained, either wholly or partly, by [Mary]..” within s.1(1)(e) of the Act? And if so(2) Was “the disposition of [Mary]’s estate effected by [her] will.....not such as to make reasonable financial provision for” Hetty? And if not(3) What (if any) order should now be made? I shall deal with those issues in that order but first it is necessary to consider in detail the facts of the case and the conclusions of the judge.

The Facts

[9]Mary was born on 7th May 1913. She was the daughter of the well-known artist George Spencer Watson R.A. He bought the Dunshay Manor Estate in 1923. It consists of a manor house dating mostly from 1640, cottages, grazing and woodland extending, in all, to a little under 40 acres. It became and thereafter remained the home of the Spencer Watson family. G. Spencer Watson died before WWII and Mary inherited the Dunshay Manor Estate. In 1955 she leased Dunshay Manor to Mr Leslie Baynes, the husband of Margot. They already had four children, namely the fifth, sixth and seventh defendants and respondents and another daughter, Suzie. Hetty was born the following year on 16th August 1956. Shortly thereafter the close relationship between Mary and Margot, which, in one form or another, was to last until the death of the former, commenced. Leslie Baynes and Margot separated in about 1958 and were divorced in 1964.[10]Mary was a quasi-parental figure to all Margot’s children and exerted a dominant role within their family. She showed considerable generosity to each of them. In 1972 she settled £15,000 on trust for Margot for life with remainder to Hetty for life with remainder to Hetty’s children. She bought and sold various houses in and around London in which they all lived during the week. By 1978 the house was 15 The Terrace, Barnes. It had been bought in the name of Margot alone. At about that time Margot spent most of her time in London but Mary remained in Dunshay Manor during the week to concentrate on her career as a sculptress. Mary also bought a flat for Hetty, then aged 22, in Abingdon Villas, London, W8. These were substantial gifts to both Margot and Hetty.[11]Hetty had started to train at the Royal Ballet School in 1966. By 1969 she turned her ambitions to becoming an actress and obtained her first Equity card in 1974. Thereafter she appeared in various stage productions and films. Ultimately she obtained a part in a film directed by Ken Russell to whom she was married in 1992. There was one child of that marriage, namely Rex who was born on 7th January 1993. The marriage did not last. They separated in 1996 and were in due course divorced. By then the flat in Abingdon Villas had been long since sold and Hetty was living in the matrimonial home at 47 Filmer Road, London. As part of the divorce settlement Hetty agreed to the sale of that property on terms that she received £235,000 from the proceeds of sale. That agreement was embodied in an order of the court made on 18th April 1997 which stipulated that payment of that sum was in full and final satisfaction of all claims Hetty might have against Ken Russell.[12]Both before the marriage of Hetty to Ken Russell and after their separation Mary lent substantial sums to Hetty. On each occasion the accommodation was sought by Hetty and granted by Mary as a loan to be repaid. All the loans then outstanding were repaid in March 2000 from the sale of Hetty’s then flat in Hampstead. On 8th November 2000 Hetty wrote to Mary seeking a further loan from Mary of £60,000 so that she might get “back on the property ladder”. Mary complied with that request when, in November 2001, she borrowed £72,490 from her bank on the security of her share portfolio. With that assistance and a further mortgage loan Hetty bought a flat at Morgan’s Walk, Battersea in November 2001.[13]By February, August and September 2003 Hetty was again short of money and again sought help from Mary. Help was duly provided in the aggregate sum of £49,313 but gave rise to an important meeting in August or September 2003 between Hetty, Mary and Mary’s accountant Mr Michael Henderson. Lewison J recorded the evidence of Hetty and Mr Henderson and his findings in these terms [19]:
“Mr Henderson says that at the meeting Mary made it clear to Hetty that this would be the last time that she would be assisting. He understood that the clear message was that from then on Hetty would have to stand on her own. He said that the two women shook hands on the deal; and he thought that that transaction would bring an end to Mary's financial support. In her cross-examination Hetty was reluctant to give direct answers to questions about what actually happened at the meeting. She was more keen to interpret the meeting with the aid of hindsight. However, she did eventually agree that there was a bit of a showdown; and that Mary told her that this was the last time that she would help. She agreed that she was told that there would be no more help; and that the meeting was quite formal. She did not remember shaking hands at the end of the meeting. She thought it more likely that she and Mary hugged each other. In fact Mr Henderson was not talking about a handshake at the end of the meeting, but a handshake to seal the deal. In substance Hetty agreed with Mr Henderson's evidence, which I accept, including his evidence about the handshake.”
[14]Notwithstanding that agreement Hetty sought and obtained further financial accommodation from Mary between March and November 2004, namely, three payments of £1,910 each to the mortgagees of Hetty’s flat and a cash float of £3,000. It was agreed that the aggregate of these sums (£8,730) would be repaid with interest out of the proceeds of sale of Hetty’s flat, which was then on the market. Mary also paid £600 for the servicing of Hetty’s car in November 2004.[15]This pattern continued into 2005. Mary provided £1,500 for a car and cash. On 23rd June 2005 Hetty wrote to her acknowledging that they were loans and soliciting further loans pending a hearing of her application for maintenance from Ken Russell for Rex and, seemingly, herself. In the event Mary agreed to pay and did pay Hetty’s mortgage payments for six months, amounting to £11,460, and a number of smaller payments aggregating £7,300. All of them were by way of loan to be repaid either from the proceeds of sale of Hetty’s flat or out of sums she hoped to obtain from Ken Russell.[16]On 13th December 2005 Hetty went to see Mary at Dunshay Manor, at the suggestion of a friend, in order to encourage Mary to take responsibility for Hetty as a parent would. Having heard the evidence of Hetty and her friend, Lewison J had no doubt that Hetty tried to persuade Mary to change her will and “did so in forceful terms”. On 19th December 2005 Mary saw her solicitor Mr Sherbrooke about her concerns for the Baynes family, her wish to preserve the Dunshay Manor Estate and her responsibilities for the tenants of the cottages. She raised with him the possibility of an equity release scheme. Lewison J inferred that this meeting and suggestion was the consequence of the meeting with Hetty the week before.[17]Mary met Mr Sherbrooke again on 8th January 2006. The judge concluded that by then Mary had decided that in principle she wished to help Hetty to some extent. After the meeting, on 10th January 2006, Mr Sherbrooke wrote to Mary concerning the matters they had discussed two days earlier. As was her wont, Mary annotated that letter with her comments. Having considered the evidence of Mr Sherbrooke, his letter and Mary’s comments the judge concluded [69]:
“At this stage, therefore, I find that Mary's intention was to help Hetty clear her debts and no more. She did not intend to make an immediate payment to buy a home for Hetty; nor to provide Hetty with any additional lump sum. In addition she expected to be repaid out of the maintenance claim for the stop gap payments she had recently made. She expressly rejected any responsibility for supporting Hetty. Her comments on Mr Sherbrooke's letter also show that she still wanted to leave Dunshay Manor to the Landmark Trust; and that she did not want the cottages to be sold off to pay for borrowing. She did not want to leave the cottages either to the Baynes family or to Hetty alone. Nor did she wish to assume responsibility for Margot's care. So far as the residue of her estate was concerned she wished to bypass Margot, and leave it all to Hetty. Mr Sherbrooke was to investigate the funding of equity release. The kind of equity release he was to investigate was not an immediate lump sum drawdown, but a facility to borrow as and when borrowing was needed.”
[18]On 6th February 2006 there was a meeting between Mary, Mr Sherbrooke, Hetty and Hetty’s financial adviser, Mr Midgley. Prior to the meeting Mr Midgley had prepared a summary of Hetty’s “Financial Requirement” for £585,000 for various stated purposes. The meeting was lengthy and, as Lewison J commented, a considerable strain for Mary. After the meeting Mr Sherbrooke wrote to Mary’s bank stating, inter alia, that “Miss Spencer Watson has agreed to bail out her god-daughter, Miss Baynes”.[19]Lewison J, who described the course of the meeting in some detail in paragraphs [74] to [79] of his judgment, found as a fact that:
“Mary had not "agreed" to Hetty's proposal in the sense of having committed herself to it.”

The judge continued in paragraph [80]:

“On 14 February [Hetty] spoke to Mr Sherbrooke and made it clear that she was looking for an undertaking by Mary to the bank that Hetty would be receiving substantial funds. The letter of comfort was not enough. Hetty's own note of that date contains a draft form of undertaking that Hetty would be receiving £600,000 early inheritance in four to six weeks' time. Mary gave no such undertaking.”
[20]Mr Sherbrooke had a further meeting with Mary on 20th February 2006. Lewison J accepted his evidence [87]:
“that Mary was racked with indecision between wanting to help Hetty but at the same time wanting the Landmark Trust to have Dunshay and for the tenants of the cottages to be safeguarded. These objectives were in conflict. She was reduced to asking Mr Sherbrooke to make the decision for her, which quite properly, he could not and would not.”
Mr Sherbrooke reported the effect of this meeting to Mr Midgley who, in turn relayed it to Hetty. As

the judge recorded in paragraph [90]:

“Hetty did not mention this at all in her written evidence, although she made a written note of the conversation. She attempted to explain in her oral evidence that this was because the situation was "fluid", but I found her explanation unconvincing. It is clear from her private journal that she was furious at what she saw was Mary's reneging on her promise. She wrote in her journal that Mary should grow up and honour her relationship with Margot and her parenting of Hetty and her siblings; and take responsibility. She described Mary's behaviour as "selfish + childish + cruel + abusive".”
[21]Mr Midgley pursued his enquiries concerning a lifetime mortgage on the Dunshay Manor Estate to enable Mary to borrow substantial sums to be provided to Hetty. He set up a meeting for 7th March 2006 to be attended by himself, Hetty, representatives of a potential mortgage lender, Mary and a solicitor of Hetty’s choice, Mr Cuppage, who Mary had never met, but not Mr Sherbrooke. The meeting never took place because Mary was admitted to hospital that morning and died later in the day.

The judge recorded [92] without comment that:

“Ms Harvey was with Mary in hospital very shortly before she died. Her evidence was unchallenged. She said that while she was sitting with Mary, Mary took off her oxygen mask, and said: "I can't be doing with this, I've got to get up. I've an important meeting this morning, I have to make sure Hetty is settled, looked after, that she has what she needs from the estate. I've got to get it sorted." Ms Graham calmed her and she drifted off to sleep. She died shortly afterwards.”
The judgment of Lewison J "I can't be doing with this, I've got to get up. I've an important meeting this morning, I have to make sure Hetty is settled, looked after, that she has what she needs from the estate. I've got to get it sorted."

The judgment of Lewison J

[22]In his careful and comprehensive judgment Lewison J dealt with the extensive background to the claims of both Hetty and Margot. He did so under various headings the material parts of which I have sought to summarise so far as they relate to the appeal of Hetty. But there are other parts of relevance to which I should refer. In a section headed ‘Mary, Margot and Margot’s health’ he considered the relationship between Mary and Margot. This was directly relevant to the claim made by Margot but it is also relevant to Hetty’s attitude towards Mary.[23]The judge considered the relationship from its inception at the time Leslie Baynes leased Dunshay Manor to its termination by the death of Mary in 2006. He concluded [35]:
“that Mary and Margot had a loving relationship which spanned fifty continuous years. In its early phase they shared a bedroom and so it was probably also sexual; although since 1978, when each of them had her own bedroom in the other's house, it was probably not. But they were undoubtedly emotionally committed to one another. When they were not together they would speak on the telephone every day. There was no falling out between them, and their relationship carried on until Mary's death. But their relationship was a private relationship. Although those close to them might have guessed, or even known, that they were a couple; it was not something that they themselves acknowledged. Had any sexual element in the relationship been suggested, they would have denied it.”
[24]The nature of this relationship was raised by Hetty with Mary at their meeting on 13th December 2005 to which I have referred in paragraph 16 above.

The judge recorded in paragraph 55 of his judgment that:

“By now Hetty had realised that her application for a large lump sum from Ken Russell would not succeed. She confronted Mary about her relationship with Margot, and Mary admitted that their relationship had been an intimate one. All the witnesses agreed that Mary was a very private person, who had never previously acknowledged her relationship with Margot; and to do so at this juncture must have been very difficult for her. Hetty herself said that Mary confessed to guilt and shame about the relationship. In her oral evidence, however, Hetty said that it was not her purpose to use the meeting to get Mary to pay her bills. It was, as she put it, about the "bigger picture"; although the canvas of the bigger picture seemed to be filled by her and Rex, and in particular her financial problems. What she wanted was for Mary to make her and Rex secure, by clearing her debts, buying her somewhere to live and giving them a solid base. She said to Mary that without anything coming from Ken she would be bankrupt and homeless; and asked Mary whether she would be happy with that. Without Mary's help, she said, they would not survive. These statements must have put considerable pressure on Mary and in my judgment they were designed to do so. They had some effect. By the end of the meeting Mary had said that she would put the wheels in motion and see what was possible.”
[25]In a section entitled “Mary’s will and the bequest to the Landmark Trust”. Lewison J traced Mary’s testamentary dispositions of the Dunshay Manor Estate. In her will dated 6th July 1977 she had originally left it to the Artists Benevolent Fund. However she reconsidered that gift because she believed that that Fund would sell the Estate and use the proceeds for their purposes whereas she wished the Estate to be retained. In 2002 she learned of the existence of the Landmark Trust, a registered charity, whose aim, as the judge recorded, is to rescue old and interesting buildings which are at risk but does not require a capital endowment. This led to her instruction of Mr Sherbrooke with a view to changing her will. Mr Sherbrooke contacted the Landmark Trust and on 19th November 2002 the trust wrote to Mary confirming that it would accept a bequest of the Dunshay Manor Estate. By then, on 29th October 2002, Mary had executed the second codicil to her will substituting the Landmark Trust for the Artists Benevolent Fund. The concerns of Mary for the preservation of the Dunshay Manor Estate did not end. Mary continued to consider alternatives but never adopted any of them. Her determination to preserve the Dunshay Manor Estate never wavered.[26]The alteration of her will by the execution of the second codicil gave rise to a question of construction on which depended the question where the burden of paying the debts, funeral and testamentary expenses fell. There was no dispute that the liability for inheritance tax fell on the residuary estate because s.41 Inheritance Tax Act 1984 so provides but there was an argument that because of the terms of the bequest of the Dunshay Manor Estate to the Landmark Trust the debts, funeral and testamentary expenses were charged on the specific devise of the Dunshay Manor Estate. The judge dealt with this in a section headed ‘Construction or rectification of the will’. He concluded that they were not charged on the estate with the consequence that they were payable out of the residuary estate. There is no appeal from that conclusion, but the consequence is to confirm that the principal value of the estate is made up of the Dunshay Manor Estate.[27]In a section headed ‘The legal framework’ Lewison J considered a number of issues which had been raised in argument to which I shall, as necessary, return when considering the issues arising on this appeal. Lewison J then turned to consider the claims of Margot in the various ways they were framed. He decided that Mary and Margot did not live in the same household as civil partners and that Margot was not maintained by Mary immediately before the death of the latter. Consequently [156] Margot’s claim failed.[28]Lewison J then considered the claim made by Hetty under the headings ‘Was Hetty being maintained by Mary immediately before Mary’s death?’ and ‘Does the will fail to make reasonable provision for Hetty?’. For the reasons given in paragraphs [158] to [166] he answered the first question in the affirmative. For the reasons given in paragraphs [167] to [208] he answered the second question in the negative. As I have indicated in paragraph 8 above both questions arise on this appeal. To those questions I now turn.

Was Hetty being maintained by Mary immediately before Mary’s death?

[29]The categories of person entitled to make a claim under Inheritance (Provision for Family and Dependants) Act 1975 is set out in s.1(1) thereof.

(e) ,:

"any person...who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;"
Subsection 1(3) provides that:
"For the purposes of subsection 1(e) a person shall be treated as being maintained by the deceased, either wholly or partly, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person."
[30]S.2 describes the various orders the court may make if satisfied that the claim has been made out. S.3 sets out the matters to which the court is to have regard which I have already summarised in paragraph 3 above. Subsection 3(4) provides that:
"Without prejudice to the generality of paragraph (g) of subsection (1) above where an application for an order under section 2 of this Act is made by virtue of section 1(1)(e) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility."
[31]In Re Beaumont [1980] Ch.444, 455 Sir Robert Megarry V-C considered that:
“..section 3(4) assumes that in any case within paragraph (e) of section 1(1) which reaches that stage that there has in fact been an assumption of responsibility, and so I think it excludes from the Act any such case where there has been no such assumption of responsibility.”
He also considered the phrase in S.1(1)(e) “immediately before the death of the deceased”. Sir Robert Megarry V-C considered that this required the court to consider the general basis or arrangement then existing and not merely the de facto state of maintenance at that time.[32]In Jelley v Iliffe [1981] Fam. 128 the Court of Appeal agreed with the first of those propositions but not the second. At p.136 Stephenson LJ, with whom Cumming Bruce LJ agreed, said:
“Where, however, I feel bound to part company from Sir Robert Megarry V.-C. is in his interpretation of assumption of responsibility for the maintenance of the supported person. I do not question his opinion that the requirement of section 3 (4) that the court: "shall… have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility" implies or "assumes" (in another sense) that at the first stage, when the court is considering the applicant's right to apply under section 1 (1) (e ), he must prove that the deceased did "assume responsibility" for his maintenance. But I cannot, with respect, agree with him... that the bare fact of maintenance raises no presumption that responsibility for it has been assumed. I am of opinion that it generally does." Later he added: “It may be that the presumption can be rebutted by circumstances including a disclaimer of any intention to maintain. But here there is, in my judgment, a distinction to be drawn between an intention to maintain during the lifetime of the giver who has something to offer and an intention to provide continuing support after death.”
Stephenson LJ concluded (p.138): “Accordingly, I am of opinion that the court has to consider whether the deceased, otherwise than for valuable consideration (and irrespective of the existence of any contract), was in fact making a substantial contribution in money or money's worth towards the reasonable needs of the plaintiff, on a settled basis or arrangement which either was still in force immediately before the deceased's death or would have lasted until her death but for the approach of death and the consequent inability of either party to continue to carry out the arrangement.” "shall… have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility"[33]Griffiths LJ appears to have been of the like opinion. He stated at the outset of his judgment that:
“I agree with the construction of sections 1 (1) (e )and (3) expounded by Sir Robert Megarry V.-C. in In re Beaumont, decd. [1980] Ch. 444. I adopt his reasoning and set out the following conclusions. Section 1 (3) contains an exhaustive definition of the words "being maintained" where they appear in section 1 (1) (e ). The words "immediately before the death of the deceased" in section 1 (1) (e ) cannot be construed literally as applying to the de facto situation at death but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them.”
He added at page 141:
“The difficulty I have is to know what significance to attach to the words "assumed responsibility for the maintenance of the applicant" in section 3 (4). Section 1 (1) (e ) appears to me to be aimed at giving relief to persons where the relationship to the deceased is such that it is highly unlikely that any formal arrangements will have been made between them. Obvious examples are the elderly but impoverished relative or friend who is taken into the deceased's household and given free board and lodging and treated as a member of the family or a man living with a woman out of wedlock but supporting her as he would a wife. In such circumstances I would not as a general rule expect to find any formal declaration of assumption of responsibility, but it cannot have been the intention that such cases should fail for want of some such formality. I read "assumed responsibility for" as being equivalent to "has undertaken" and not adding much to the fact of maintenance.”
[34]Lewison J directed himself by reference to these provisions and authorities and summarised their effect in paragraphs [134] and [135] in these terms:
“134. If, therefore, Mary in fact maintained ...Hetty immediately before her death (in the extended sense of "immediately"), there is a presumption that she assumed responsibility for it; but the presumption may be rebutted by other evidence. Arrangements that have come to an end do not count as such maintenance. 135. In addition to considering whether Mary assumed responsibility for maintenance of ... Hetty, I must also have regard to both the extent of the assumption of responsibility and the basis on which responsibility was assumed.”
[35]Lewison J applied those principles in the case of Hetty in paragraphs [158] to [166] of his judgment. In paragraph [158] he pointed out that the question of maintenance was one of “actual fact rather than unimplemented promises”. Accordingly he excluded from his consideration the discussions that took place in the period January and February 2006 as irrelevant to the first question, whilst acknowledging their relevance to the second. Similarly, in paragraph [159], he excluded from consideration the payments made to Hetty by Mary before the meeting which occurred in September 2003 to which I have referred in paragraph 13 above on the ground that the prior events could not constitute part of the settled pattern immediately before the death of Mary. In paragraph [160] he excluded the payments made by Mary to Hetty in 2004 on the ground that they were loans to be repaid from the proceeds of sale of Hetty’s flat. He also excluded [162] the mortgage payments for six months to the mortgagee’s of Hetty’s flat on the basis that these payments were time limited and had ceased before the death of Mary.[36]His conclusion expressed in paragraphs [163] to [166] was:
“163. What is left, then, is the fact that during 2004 Mary made available to Hetty some £3,000 plus a generous Christmas present, and in 2005 some £8,200, part of which was the stop gap payments. Was this substantial? I have hesitated about this, but in the end I have come to the conclusion that, by a narrow margin, it was. 164. [Counsel for Hetty] submitted that the sums that Mary made available to Hetty were either gifts or were what he called "soft loans" and were, therefore, contributions made otherwise than for full valuable consideration. By soft loans [Counsel for Hetty] meant a loan which: i) Was interest free; ii) Would never be enforced; iii) Did not have to be repaid; and iv) Was unlikely to be repaid, to Mary's knowledge. 165. Given Hetty's repeated protestations that she did not want gifts or handouts and that she intended to repay, it is distasteful that she now seeks to characterise the payments as gifts. There are, as I have recounted in dealing with the narrative, indications that Mary herself saw them as loans. But I am willing to accept that they were soft loans in the sense in which [Counsel for Hetty] used that phrase. The contributions were therefore made otherwise than for full valuable consideration. 166. I hold, therefore, that Hetty was being partly maintained by Mary immediately before her death. She is therefore eligible to make a claim.”
[37]On this appeal counsel for Landmark submits that the judge wrongly failed to consider whether the facts which he considered constituted maintenance also demonstrated an assumption of responsibility for the maintenance of Hetty within s.3(4). He suggests that the conclusions reached in paragraph 165 did not, without more, warrant the conclusion stated in paragraph 166. He points out that in the case of the claim by Margot the judge in paragraph [157] seemed to consider that an assumption of responsibility was relevant to the second question and not the first.[38]In the case of the claim by Hetty the judge considered whether Mary had assumed responsibility for her maintenance in relation to the second question and considered that she had not. In paragraphs [188] to [195] Lewison J considered whether and if so to what extent Mary had assumed responsibility for helping Hetty financially. In that connection he considered the discussions which had taken place between them over the last two years or so of Mary’s life. His conclusions are set out in paragraphs [190] to [195] and should be quoted in full. In those paragraphs Lewison J said: “190. The arrangements made in March 2004 were expressly said by Hetty to be "arrangements for the following few months." The monies were repayable with interest on the sale of Hetty's flat. These arrangements, even if they were a "soft loan", cannot in my judgment be seen as any assumption of responsibility by Mary for Hetty's future maintenance. On the contrary, they were both repayable and time limited. When Ms Parmigiani asked Mary for money on Hetty's behalf, Mary kept her options open, even though she did not in the event ever refuse. But the point is that Hetty had to ask every time. In addition the arrangements made in 2005 were made in the expectation that at the beginning of the following year Hetty would succeed in obtaining a significant increase in her maintenance payments from Ken Russell and, at the inception of the arrangements, the possibility of a large lump sum as well, out of which Mary would be repaid. Mary's agreement to pay the mortgage in the summer of 2005 was expressly limited to six months. As late as December 2005, when it was known that there was no possibility of a lump sum, but that there would shortly be a hearing of Hetty's application for increased maintenance, the payments that Mary made to Hetty were described as "stop gap". Again this was expressly a temporary arrangement. There is also Mary's significant annotation on Mr Sherbrooke's letter of 10 January 2006: "[Hetty] says if she can be freed from her debts she can maintain herself by her career and Russell maintains his son. I do not want her to feel she is supported by me or to feel that there is money for that purpose"191. There are two points of significance about this annotation. First, what was being contemplated was the payment of Hetty's debts, and not the provision of a flat, let alone an unencumbered flat. Second, Mary was expressly disclaiming any responsibility for Hetty's ongoing support. Thus even after the pressure exerted on Mary at the meeting on 15 December 2005, she was still not willing to do more than pay off Hetty's debts. Hetty's furious reaction in her private journal, berating Mary for not taking what Hetty saw as her "responsibility", also shows that Mary was not assuming responsibility for Hetty's financial well-being and, importantly, that Hetty appreciated that.192. During the meeting with Mr Sherbrooke and Mr Midgley Mary's attitude softened, and she was willing to give Hetty more help. This was a result of considerable pressure put on her by Hetty. But I find that she made no firm commitment to do so; and in any event by the end of the meeting, she was in no fit state to do so. But it is true to say that she said more than once during the meeting, and on a number of occasions thereafter, that Hetty was her first priority. Having said that, I find that Mary was not prepared to help Hetty to the extent that it might jeopardise her gift of the Dunshay Manor Estate to the Landmark Trust. There is a note made by Mary, to which I have not previously referred because it is undated. However, I think it probable that it records Mary's position at a point very shortly before her death: "Must live with what I have I must take the blame for my decision – whatever – I.E. SECURITY FOR "Bricks & Mortar" above human life for future"193. There is another note, also difficult to date, but almost certainly after 14 February 2006, and thus very close to Mary's death: "Nothing further -– she must make her own life in the future - that is what she is saying today "get my debts paid and then I can get on with my life""194. I must not, of course, overlook what Mary said in hospital just before she died, but her expression of desire to help Hetty is consistent with merely paying her debts; and with the extent of the help not jeopardising the gift to the Landmark Trust.195. I find therefore that Mary made no firm commitment of any sort to Hetty; that her primary concern was that Hetty's existing debts be paid, so that Hetty could support herself and get on with her life; that she did not want Hetty to feel that money was there for her continuing support; that she was willing to consider making up to £250,000 available; but that she was not willing to jeopardise the gift to the Landmark Trust.” "[Hetty] says if she can be freed from her debts she can maintain herself by her career and Russell maintains his son. I do not want her to feel she is supported by me or to feel that there is money for that purpose" "Must live with what I have I must take the blame for my decision – whatever – I.E. SECURITY FOR "Bricks & Mortar" above human life for future" "Nothing further -– she must make her own life in the future - that is what she is saying today "get my debts paid and then I can get on with my life""[39]Counsel for Landmark supports those findings but submits that the judge should have recognised that given those conclusions Hetty was not entitled to make a claim at all. In other words had those paragraphs followed his statement in paragraph 165 his conclusion in paragraph 166 must have been to the opposite effect.[40]Counsel for Hetty accepted that as a matter of law an assumption of responsibility by the deceased for the maintenance of the claimant is an essential ingredient in the qualification of a person entitled to make a claim under s.1(1)(e). He did not contend that the decision of the Court of Appeal in Jelley v Iliffe [1981] Fam. 128 was not binding on us for the proposition, as expressed by Sir Robert Megarry V-C in Re Beaumont [1980] Ch.444, 455 that there is excluded from the class of person entitled to advance a claim under s.1(1)(e) “any such case where there has been no such assumption of responsibility”.[41]Counsel for Hetty sought to uphold the decision of the judge on this point by challenging the inferences the judge drew from Mary’s note on the letter to her dated 10th January 2006 from Mr Sherbrooke. The note and the context in which it was made are described by Lewison J in paragraph [64] of his judgment in these terms: “Mary's annotations on Mr Sherbrooke's letter of 10 January 2006 make clear what her intention was at that time. She made the annotations on 14 January 2006 after Hetty and Rex had returned to London. Her first annotation read: "I need repaying for my "stop gap" payments of the last week or so. Details later this week." The stop-gap payments were those to which the judge referred in paragraph [63] of his judgment and which I have described in paragraph 14 above as a number of smaller payments aggregating £7,300. Counsel for Hetty submitted that those loans were to be repaid from the proceeds of the equity release or lifetime mortgage scheme and not by Hetty. To that extent they were not loans to Hetty. "I need repaying for my "stop gap" payments of the last week or so. Details later this week."[42]That submission is contrary to the judge’s finding in paragraph [69] of his judgment which I have quoted in paragraph 17 above. In that paragraph Lewison J concluded that the source of repayment was to be the maintenance claim which she had been told had been made by Hetty against Ken Russell and had not yet been determined. But even if counsel is right in his submission that would not give rise to a conclusion that the stop-gap payments were by way of maintenance rather than limited and short term accommodation.[43]Counsel for Hetty also contended that the judge’s conclusion expressed in paragraph [78] of his judgment that Mary had not agreed at the meeting held on 6th January 2006 to bail out Hetty was inconsistent with the letter written by Mr Sherbrooke to Mary’s bank the following day when he stated that she had. But the judge’s conclusion was one of fact and appears to me to be amply supported by all the other evidence, not least the judge’s conclusion expressed in paragraph [87] of his judgment quoted in paragraph 20 above.[44]Counsel for Hetty then contended for the first time that if the judge was wrong to have concluded that the payments actually made by Mary to Hetty in 2004 and 2005 were sufficient to demonstrate her entitlement to claim under s.1(1)(e) then the events of January and February 2006 showed a sufficient assumption of responsibility to establish such an entitlement even in the absence of any payments. I do not accept that submission for a number of reasons.[45]First, it is a new point on which specifically directed findings of fact are essential but at the trial were neither sought nor made. Although by January 2006 Mary was prepared to consider proposals for the payment of Hetty’s debts she never agreed to any. Second, as the judge observed in paragraph [158] unimplemented promises are irrelevant to maintenance in fact. Third, the mere payment of past debts is not, as the judge commented in paragraph 147 of his judgment, within the broad concept of maintenance:
“unless the payment of those debts enables the claimant to derive a future income which he or she could not do if the debts remain unpaid; or the debts represent living expenses incurred since the date of death of the deceased.”
The judge was not invited to reach any such conclusion in relation to any specific proposition. Fourth, had this submission been made to the judge it would have raised the question whether any such assumption was freely made by Mary. A conclusion favourable to Hetty cannot be assumed given the judge’s comments in relation to the statements made to Mary at the meeting on 13th December 2005 (see paragraph 16 above), his conclusion expressed in paragraph [56] that “I have no doubt that Hetty did try to persuade Mary to change her will and did so in forceful terms”, the huge strain on the relationship between Mary and Hetty imposed by the requests for money to which the judge referred in paragraph [58] suggesting that Mary was not a willing giver and the nature and duration of the meeting held on 6th February 2006 to which the judge referred in paragraph [76]. In a different context the judge observed in paragraph [203]:
“But Mary's primary concern was to pay off Hetty's existing debts. That concern was at least in part due to the unreasonable pressure that Hetty exerted on her.”
To that may be added the further comments quoted in paragraph 49 below.[46]In my view the criticism of counsel for Landmark that the conclusion of the judge expressed in paragraph 166 is not one which can be made without consideration of whether Mary had assumed responsibility for the maintenance of Hetty is well made. That such an assumption of responsibility is a necessary ingredient of a person entitled to claim under s.1(1)(e) was pointed out by Sir Robert Megarry V-C in Re Beaumont and accepted, as counsel for Hetty conceded, by the Court of Appeal in Jelley v Iliffe. The conclusions of Lewison J on the second question demonstrate that in his judgment that ingredient was not satisfied in this case. It must follow that his conclusion on the first question, as expressed in paragraph 166, was wrong.[47]For my part I would dismiss the appeal on this ground. If my view is shared by the other members of the court, it is sufficient to dispose of this appeal. In those circumstances it is unnecessary to consider the second and third questions set out in paragraph 8 above. However in recognition of the arguments presented to us I should deal with the second question briefly.

Does the will fail to make reasonable provision for Hetty?

[48]Lewison J dealt with this issue in paragraphs [167] to [208] of his judgment. In paragraph [167] he noted the extent and nature of Hetty’s claim for £807,500. In paragraphs [170] to [177] he considered the position of Hetty. In the latter paragraph he concluded that if no award were made in her favour she would be likely to be made bankrupt (Hetty had by then entered into an IVA) but that there was no evidence that bankruptcy would have any adverse effect on her future prospects as an actress. Lewison J then considered the position of Margot in paragraphs [178] to [183] and of the other beneficiaries in paragraphs [184] to [185].[49]In paragraphs [186] to [196] Lewison considered the extent of the obligations of Mary to Hetty and reached the conclusion I have already quoted in paragraph [195]. In paragraphs [198] and [199] he considered the conduct of Hetty. His conclusion expressed in the latter paragraph was that:
“In my judgment [Hetty] exploited Mary's generosity at the end of 2005 and the early part of 2006 and brought pressure to bear on her to bail her out yet again. From December 2005 to the end of Mary's life Hetty mounted a sustained campaign to persuade Mary to pay off her debts and provide for her future. Mr Sherbrooke, Ms Ratuszniak and Mrs Wooster, all of whom are disinterested witnesses, all thought that Mary was being pressurised, if not bullied. So did Nigel and Mr Cooper. I think that they were right. Even Ms Parmigiani said that Hetty's demands for money put a "huge strain" on the relationship. For Mary to have succumbed to the pressure would have jeopardised either her ardent desire to see the Dunshay Manor Estate preserved as a memorial to eighty years of artistic endeavour, or would have deprived Margot of money which may be needed for her care. This is not conduct which, in my judgment, should be rewarded.”
[50]Lewison J then turned to what he called ‘The value judgment’. He referred to the decision of Browne-Wilkinson J in Re Dennis [1981] 2 AER 140 and his comment that “...the court is reluctant to make further provision for someone for whom large sums of money have been provided and which have been dissipated by him”. Lewison J was struck by the similarity with the position of Hetty. He added in paragraph [201]:
“The most powerful factor in Hetty's favour is her parlous financial position. But there are other, counter-balancing, factors which must be taken into account. Of these, Hetty's conduct is one of the most important.”
[51]After referring to various judicial statements in paragraphs [204] and [205] Lewison J concluded in paragraphs [206] and [207]: 206. The policy behind section 1 (1) (e) was described by Stephenson LJ in Jelley v Iliffe (in a passage I have already quoted) as follows:
"Its object is surely to remedy, wherever reasonably possible, the injustice of one, who has been put by a deceased person in a position of dependency upon him, being deprived of any financial support, either by accident or by design of the deceased, after his death. To leave a dependant, to whom no legal or moral obligation is owed, unprovided for after death may not entitle the dependant to much, or indeed any, financial provision in all the circumstances, but he is not disentitled from applying for such provision if he can prove that the deceased by his conduct made him dependent upon the deceased for maintenance, whether intentionally or not." (Emphasis added)
207. It cannot, in my judgment, be said that Mary "put" Hetty in a position of dependency; or that Mary's conduct "made" Hetty dependent on her.”[52]For all these reasons Lewison J considered that it could not be said that the will of Mary failed to make reasonable financial provision for Hetty. Accordingly he dismissed her application.[53]Counsel for Hetty contended that the judge was wrong to conclude that there were sufficient ‘counter-balancing factors’ to justify his conclusion. In addition he submitted that the judge had reached a wrong factual conclusion on a number of isolated points.[54]Given my conclusion on the first question these issues do not arise. But I would add that I was wholly unpersuaded that the judge had made any factual errors. In the ordinary case it would be surprising if conduct alone could exclude an otherwise meritorious claim. But, as Lewison J made plain in paragraph [201], it was not only the conduct of Hetty which led the judge to his conclusion. He considered all the relevant factors. The ultimate conclusion was the product of the value judgment the Act required him to make. I can see no ground on which this court would be entitled to interfere with his conclusion. Accordingly, if it arose, I would dismiss the appeal on this ground also.[55]In those circumstances the third issue, namely what if any order to make, does not arise and was not argued before us.

Conclusion

[56]Accordingly, I would dismiss this appeal on the ground that Hetty was not entitled to make a claim under s.1(1)(e) of the Act. In addition, I agree with the conclusion of Lewison J that in all the relevant circumstances Mary did not fail to make reasonable financial provision for Hetty. Lord Justice Longmore[57]I agree. Lord Justice Goldring[58]I also agree.

Cited in 3 later judgments