Land v Land [2006] EWHC 2069 (Ch)

Claim Number: 4BM30334

[2006] EWHC 2069 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue BIRMINGHAM DISTRICT REGISTRY

Between

DONALD DAVID LANDClaimant

THE ESTATE OF MARY ANN LANDDefendant

B E T W E E N

JUDGMENT

APPROVED FOR HANDING DOWN

Ms Nichola Preston (instructed by Bakewells) appeared for Claimant.

Hearing 12 May 2006

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. The date on which this judgement is handed down is 13 July 2006

Date

[1]The claimant is the only son of Mary Land (“the Deceased”), and the sole executor and beneficiary under her will dated the 2nd April 1996 (“the Will”). On the 27th April 2004 he was convicted on his guilty plea of the manslaughter of the Deceased. He was sentenced to a term of four years’ imprisonment on the 21st May 2004. There is a rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing. Section 2 of the Forfeiture Act 1982 (“the 1982 Act”) empowers the Court to modify the effect of that rule. On the 2nd August 2004 the claimant presented a claim to the Derby County Court for relief under section 2 of the 1982 Act, and it was issued the next day. Section 2(3) of the 1982 Act provides that “… in any case where a person stands convicted of an offence of which unlawful killing is an element the Court shall not make an order… modifying the effect of the forfeiture rule…. unless proceedings for the purpose are brought before expiry of the period of three months beginning with his conviction”. The application was accordingly four working days out of time. When this came to the attention of Counsel and solicitors now acting for the claimant they successfully applied at trial to amend the claim to seek a declaration that the rule against forfeiture does not apply and in the alternative “that an order be made for the reasonable financial provision of the Claimant from the net estate of [the Deceased] under section 2 of the Inheritance (Provision for Family and Dependants Act) 1975”. This is the adjourned trial of the amended claim.

[2]Behind this bare recital of legally relevant facts lies a tragic story. These are the facts as I find them. The Claimant was an only child born on the 3rd May 1948 and has lived at 7 Courtlands Rd., Etwall, Derbyshire (“ the Property”) since he was very young, at first with both parents and then (following the death of his father in 1995) alone with the Deceased. His education was limited. He has never had a girlfriend. He left school at 15 and has throughout his life worked as a labourer - with the County Council, with a civil engineering company, with the MoD and then with Plasplugs Ltd. In addition to his formal employment with that company he also worked as a gardener and odd job man for the company's managing director. In 2002 the Deceased (then aged 82) asked the Claimant to give up his job with Plasplugs Ltd and to look after her. He agreed. He then received a carer’s allowance of £36 per week for which he was expected to provide 35 hours’ care to the Deceased each week. He did so by doing all the work around the house, the shopping and cooking, generally managing the household and helping the Deceased with some of her personal needs. The Claimant and the Deceased never went out, save that sometimes on Boxing Day they would go to see an aunt (Mrs Shaw). The Claimant himself rarely went out except to visit his father's grave: he told a clinical psychologist in March 2004 that he had been out for a game of darts about 2½ years earlier, that he had eaten out twice in two years, and that he had no friends other than Mrs Shaw (his aunt). In a report prepared for the criminal proceedings the clinical psychologist said (whilst emphasising that she was not providing a diagnosis) “the more I have considered [the Claimant] since the assessment the more I feel it may be likely that he is suffering from some kind of developmental disorder”. I accept the accuracy of the picture presented to and presented by the clinical psychologist.

[3]It was the prosecution case that the Deceased was a stubborn, domineering woman, hugely independent, and one who shunned any type of “officialdom” including doctors and home helps. The available evidence supports this assessment and I accept it. The clinical psychologist described the Claimant's relationship to the Deceased in these terms:- “He had a mother who knew her own mind and so he had grown up knowing that what mother wanted mother got”. There was and has been no challenge to that description.

[4]On the 4th January 2004 the Claimant summoned an ambulance to the Property because his mother was not communicating and “was off in outer space”: the Deceased was admitted to the Derbyshire Royal Infirmary. She was suffering from severe bed sores on her whole body, particularly an area from her shoulders to her legs. She had an horrendous sore at the base of her back measuring approximately 3 or 4 in. deep through which the sacrum was visible, described by the police surgeon as being “capable of taking two fists inside”. It was clear she was suffering from breast cancer. Her wounds were consistent with her having been lying in one place for a period of time in her own excrement and urine, the net effect of which was to create a cocktail of chemicals which had infected her flesh. She was unconscious and so remained until her death two days later.

[5]The Claimant was arrested and volunteered to be interviewed without the benefit of a solicitor. At interview it emerged that the Deceased had been examined by her GP in March 2002 in connection with an application for a care allowance (which examination appears to have raised no concerns, but produced no support). She had then suffered a fall in September 2003, had refused to go to hospital or permit a doctor to see her, and had taken to her bed. At her request she was provided with hot drinks, hot meals cooked for her by the Claimant, and whisky. By November she was suffering from bed sores, and the Claimant cleaned these with antiseptic wipes, and applied dressings. The Claimant did not ask the Deceased’s GP to attend because he thought he could treat the sores himself. By mid-December the Deceased said that it was too much to roll over for the sores to be dressed, and the Claimant and she agreed to leave matters, so that the wound on her back was no longer attended to. When asked at interview why this course was taken the Claimant said:- “I haven’t really got an answer to say you know,I can’t really say why I didn’t do it. I should have done but I didn’t…there is no reason at all it was my fault I suppose she’s in the state she is in…I take responsibility of that”

[6]There came a time when the Deceased refused to get up to go the toilet or to use the bucket provided for her. The claimant would shout at her telling her to go to the toilet but she would respond by saying that she would get up tomorrow. When the claimant tried to lift her she complained that it hurt. When asked at interview whether he did not think that he should have gone and got some professional help the claimant responded:

“Probably I should have done, yeah”

. Sometime just before Christmas the Deceased fell out of her bed: she complained when the Claimant tried to lift her back in, and so he left her on the floor. In interview he said he did not think of asking anybody for help:

“I don’t like imposing on other people, which I should have done, I know”

. She ate her Christmas dinner sitting on the floor, and probably one further hot meal: thereafter she appears to have taken only whisky, and her condition declined to the state where she was on the edge of consciousness. That was the condition in which she was found by the ambulance crew. Asked at interview why he had allowed this to happen the Claimant said:

“I thought I was doing the best of my abilities to know…when I started…..I thought I was keeping the standard up….But according to that I sort of slackened off just these last few months haven’t I?”

[7]The Claimant was charged with manslaughter. The basis of a charge must have been manslaughter by gross negligence founded upon an indifference to an obvious risk of injury to health. The charge was never put to the jury (nor were they called upon to assess the Claimant’s culpability having regard to the Deceased’s attitude) because the claimant pleaded guilty at the outset.

[8]The sentence passed was of four years’ imprisonment. I do not have the sentencing remarks, but the judge plainly regarded this as a case of some seriousness.

[9]If the forfeiture rule applies the Claimant cannot succeed to the estate of the Deceased in accordance with the Will and there is no point in his taking a grant. The Deceased’s estate would become divisible (under the intestacy rules) amongst the children and grandchildren of her five siblings, of whom there were 26, the largest share being 6.66% and the smallest 0.24%. None of those entitled on intestacy applied for a grant of letters of administration. Accordingly the present proceedings were commenced against “The Estate of Mary Land deceased”. On the 31st January 2005 District Judge Savage ordered that there should be served upon beneficiaries set out in a schedule to his order the claim form, the case summary prepared in the criminal proceedings, the claimant's witness statement, a medical report, the schedule of beneficiaries, a copy of his directions order, a copy of sections 1 and 2 of the Forfeiture Act 1982, and a response pack. He directed that any beneficiary wishing to be heard on the claimant's application for relief under the Forfeiture Act should respond to the Court. No beneficiary sought to be joined as a party to the action. Many did not reply. Some (representing 20% of the entitlements) positively supported the claimant: they were the group who appeared to have most to do with the Deceased. 13% of the beneficiaries preferred to leave it the Court. 20% of the entitlements were opposed to the relief (though one of them expressed the belief that the Deceased would still have wished the claimant to benefit). Of those that opposed, two instructed solicitors (though still not becoming parties), but those solicitors thereafter wrote to say that they were no longer instructed to oppose the application. As I indicated in the opening paragraph of this judgement, when the matter first came before me I considered that there were problems with the jurisdiction under the 1982 Act, and I gave permission for the amendment of the claim to seek a declaration that the forfeiture rule did not apply, alternatively for relief under the 1975 Act. Each beneficiary was also notified of this amended claim; no beneficiary responded to the amended claim or provided evidence of means. At trial I heard only argument on behalf of the claimant.

[10]The first point taken by Ms Nichola Preston of Counsel was at the time limit imposed by section 2(3) of the 1982 Act was directory not mandatory, and that notwithstanding the failure to comply with the limit there stated, the jurisdiction under the Act was still available to me. Whilst accepting that the authorities did not identify any clear principle any applicable to a statute like the Forfeiture Act, she submitted that such a course had been taken in Secretary of State for Trade and Industry v Langridge

[1991] 2 WLR 1343

and R v Spring Hill Prison Governor

[1988] 1 All ER 424

. I reject that shortly made submission. Langridge was concerned with a procedural step whereby an administrative decision was conveyed to an individual: the Court of Appeal held that having regard to the scope and purpose of the Company Directors Disqualification Act 1986, and the function and importance of the notice period in the scheme of the Act, the failure to give notice was a procedural irregularity that did not make proceedings subsequently commenced null and void. In Spring Hill the trial of the defendants had not commenced within eight weeks of committal: this was due maladministration by the staff of the Crown Court but no discernible prejudice had arisen. The Court of Appeal followed earlier authority which had held that this section was directed to the Crown Court and its officials (not the accused) and was accordingly directory rather than mandatory. In the instant case I am not concerned with administrative provisions. The Forfeiture Act is concerned with the adjustment of property rights and confers upon an individual a right to apply to the Court within a defined period. It is a form of limitation period similar to that applying to applications for reasonable provision to be made out of the estate or for rectification of a will, but (unlike the statutes which confer those rights) the Act gives the Court no discretion to extend the time for commencement of the action.

[11]Ms Preston's next submission was that the forfeiture rule itself does not apply to the claimant, having regard to the offence of which he was convicted. The possibility that the rule of public policy does not apply to all unlawful killings is reflected in section 1(1) of the Act itself, which speaks of the rule as being one “which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit.…” (though this a reference to the common law rule itself, not an enactment of the principle). The scope of the common law rule was the subject of much debate. In reviewing the authorities in Dunbar v Plant

[1998] Ch 412

Mummery LJ expressed the view (at p.423H) that the cases established that the forfeiture rule does not apply to all cases of manslaughter, that the important factor in deciding whether the forfeiture rule applied was the nature and not the name of the crime, and (at p.425C) that it was sufficient to establish that a serious crime had been committed deliberately and intentionally. He summarised the law in this way:- “The essence of the principle of public policy is that(a) no person shall take a benefit resulting from a crime committed by him or her resulting in the death of the victim and

(b) the nature of the crime determines the application of the principle. On that view the important point is that the crime that had fatal consequences was committed with a guilty mind (deliberately and intentionally). The particular means used to commit crime (whether violent or non-violent) are not a necessary ingredient of the rule” On that formulation Dunbar (which concerned aiding and abetting a suicide) was undoubtedly a case in which there was the necessary guilty mind. On that formulation the decision in the instant case is whether manslaughter of the type committed by the claimant was committed “with a guilty mind” so as to engage the rule. That was the issue explored by Ms Preston by reference to the earlier authorities (particularly Re H deceased

[1990] 1 FLR 441

[12]On the view I take as to the disposal of the present case this exploration is not required. In Dunbar Phillips LJ (with whose judgement Hirst LJ agreed) held that the first and paramount consideration must be whether the culpability attending the beneficiary’s criminal conduct was such as to justify the application of the forfeiture rule at all: see p. 438E. The criminal conduct in that case was that of an unsuccessful party to a suicide pact in aiding and abetting a suicide. Phillips LJ held that such conduct led to the application of the rule. He reached that conclusion by an analysis of the law relating to manslaughter cases (so that although the decision itself relates to a suicide pact, the reasoning underpinning the conclusion is directly applicable to the case before me). The following key points emerge:-(a) It is hard to see any logical basis for not applying the forfeiture rule to all cases of manslaughter. In manslaughter the actus reus is causing the death of another. That actus reus is rendered criminal if it occurs in one of the various circumstances prescribed by law. Accordingly, anyone guilty of manslaughter has caused the death of another by criminal conduct, and it is in such circumstances that the rule applies: p.435E.

(b) Manslaughter is a crime which varies infinitely in its seriousness, from something very near to murder to something little more than inadvertence: p.433G.

(c) The harshness of applying the forfeiture rule inflexibly to all classes of manslaughter in all circumstances is such that the rule probably could not survive unvaried: p.435G.

(d) The only logical way of modifying the rule would have been to decline to apply it whether facts of the crime involved such a low degree of culpability or such a high degree of mitigation that the sanction of forfeiture, far from giving effect to the public interest, would have been contrary to it: p.435H.

(e) The pressure for judicial intervention of that type has been removed by the Forfeiture Act 1982: p.436.

(f) The 1982 Act has given the Court a greater degree of flexibility than could have been achieved by judicial modification of the rule: p.436H. In consequence, Phillips LJ said:- “I can see no reason now for the Court to attempt to modify the forfeiture rule. The appropriate course where the application of the rule appears to conflict with the ends of justice is to exercise the powers given by the Act” (ibid).

[13]In my judgement that reasoning must be regarded as part of the ratio of the majority: see p.437D. The difficulty is that “the appropriate course” cannot be taken in a case (such as the present) where “the powers given by the Act” are not available to deal with a conflict between the application of the rule and the ends of justice. That was not the situation before the Court in Dunbar, and was not raised in argument or considered in the judgements. It is the situation in the case before me, and Dunbar could be distinguished upon that ground obliging me to consider the true scope of the forfeiture rule. I decline to take that course for two reasons. First, because I consider that there is another mechanism for mitigating the harshness of an absolute rule where its application is in conflict with the ends of justice. Second, because it is important that where possible there should be consistency of approach at first instance. In Dalton v Latham

[2003] EWHC 796

(whether claimant was acquitted of murder on the grounds of diminished responsibility but pleaded guilty to manslaughter) Patten J. held that Dunbar “….. must now be taken to be a binding statement of the law as to the application of the rule of public policy. It applies to all cases of unlawful killing, including manslaughter by reason of diminished responsibility or by reason of provocation. The only possible exception is where the defendant is found to be criminally insane, which leads to an acquittal….” I propose to take the same approach. I therefore consider myself unable to declare that the forfeiture rule does not apply to the type of manslaughter to which the Claimant pleaded guilty.

[14]That leads me to Ms Preston's third submission, namely that the answer is to be found in the Inheritance (Provision for Family and Dependants) Act 1975. Section 3(1) of the1982 Act provides:- “ The forfeiture rule shall not be taken to preclude any person from making an application under [any provision of the Inheritance (Provision for Family and Dependants) Act 1975] or the making of any order on the application…”. This section plainly means that, if there were any doubt about the impact of the common-law forfeiture rule, by statute the right to make an application under the 1975 Act or to receive the benefit of order under the 1975 Act does not amount to the “acquisition of a benefit in consequence of the killing” within the contemplation of the forfeiture rule (save in the case of murder for which special provision is made in section 5). Ms Preston however submits that the section goes beyond that, because there is little point in the section conferring the right to make an application if the existence of the forfeiture rule of itself nonetheless prevents the success of the application. She asks me to read the words “the forfeiture rule shall not be taken to preclude…..the making of any order….” as meaning that the fact that an applicant under the 1975 Act has killed someone on whom they were dependant cannot prevent an order being made.

[15]What apparently lies in the way of that submission is the decision Court of Appeal in Re Royse

[1985] Ch 22

. In that case the plaintiff was convicted of the manslaughter of her husband (with a finding of diminished responsibility). She was the sole beneficiary under his will, but the forfeiture rule prevented her from taking. The Forfeiture Act 1982 was not in force. She applied for provision under the 1975 Act. At first instance the judge struck out the application holding (amongst other grounds) that the public policy which prevented the plaintiff from taking a benefit under the will or on intestacy likewise disentitled her from applying for relief under the 1975 Act. The two judge Court of Appeal upheld the judge’s decision.

[16]On appeal Counsel had argued that s.3 of the Forfeiture Act 1982 (which came into effect after the killing) was declaratory of the pre-existing law or alternatively retrospective in effect, and therefore availed Mrs Royse. Both these arguments were rejected. The meaning of section 3 of the 1982 Act and its effect upon the ability of the Court to make provision under the 1975 Act for Mrs Royse was not therefore directly in issue, nor was it a ground of the actual decision in that case (which was that the forfeiture rule applied as much to the making of an application under the 1975 Act as to receipt of a direct benefit under the will). But there were powerful dicta. Both Ackner LJ and Slade LJ held that even if section 3 had permitted Mrs Royse to make an application under the 1975 Act the condition set out in section 2(1) of the 1975 Act (that “the disposition of the deceased's estate effected by his will….. is not such as to make reasonable financial provision for the applicant..”) could not be satisfied where the applicant was the left the whole estate by will but was prevented from taking it by operation of the forfeiture rule. As Slade LJ put it:- “It is not a consequence of the will or of the law relating to intestacy that the plaintiff is precluded from receiving the provision thereby made for her. Unhappily it is a consequence of her own act, coupled with the forfeiture rule”. This was treated as a statement of the law by Vinelott J in Re K

[1985] Ch 85

at 101E-F: though again the issue was not directly in point in the case before him or on the appeal from his decision (see Re K

[1986] Ch 180

at 194F-195B).

[17]The point is before me directly for decision. The Claimant cannot be relieved from the consequences of the forfeiture rule under the 1982 Act. The question is: can he receive an award under the 1975 Act even though he is the sole beneficiary under the Deceased’s will? Absent section 3 of the 1982 Act plainly he cannot: for Re Royse (supra) is decisive of the position. Does section 3 make any difference? The powerful dicta in Re Royce suggest that it does not. But I consider that I am bound to construe section 3 for myself, not being bound by any direct decision, and being bound to approach the meaning of the section in the light of current rules as to construction.

[18]The forfeiture rule is a principle of public policy, the application of which may produce unfair consequences in some cases. It is not the statement of a principle of justice designed to produce a fair result: per Mummery LJ in Dunbar (supra) at 422D-E. There is a justifiable dissatisfaction with its indiscriminate application in every case of unlawful killing: per Phillips LJ in Dunbar (supra) at 431G. Following Dunbar however it is no longer possible to discriminate in the application of the rule, only to mitigate its effects where the ends of justice require. The rule will accordingly be applied even where the public interest does not require it (and even where its application may be contrary to the public interest), but in some circumstances its effects may be mitigated. Is it necessary to construe section 3 of the 1982 Act in such a way that it is not available to mitigate the effects of the rule if justice requires (leaving the Claimant to suffer possibly unfair consequences from the indiscriminate application of a rule)? or can the statutory words (that the forfeiture rule shall not be taken to preclude the making of any order on an application under the 1975 Act) be given full effect?

[19]For two reasons in my judgement the words must now be given their full effect. First, on the approach to construction that must now be adopted. Second, upon a consideration of what section 3 was designed to achieve.

[20]Section 3 of the Human Rights Act 1998 requires the Court, so far as it is possible to do so, to read and give effect to primary legislation in a way that is compatible with Convention rights. Article 8 of the First Protocol to the ECHR provides that “every natural …person is entitled to the peaceful enjoyment of his possessions” and that “no-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law”. The right to inherit property under a will is in my judgement a “possession” within the protocol. The Claimant is not to be deprived of it except in the public interest. Following Dunbar he will be deprived of it even where the public interest does not require unless(a) “the appropriate course” under section 2 of the 1982 Act can be taken or

(b) (where that is not available) section 3 is read as meaning that the forfeiture rule does not preclude the making of an order under the 1975 Act. In my judgement section 3 of the 1982 Act must now be read (so far as the language permits) in a way that enables the Court to deprive the wrongdoer of benefit from the estate when it is in the public interest so to do, but to confer a discretion to mitigate the harshness of the absolute rule where it is not in the public interest to deprive the wrongdoer of all benefit from the estate: because that is the only way the Forfeiture Act 1982 can be given effect in a way that is compatible with Convention rights: (compare the approach adopted in Law Commission Consultation Paper No 172 “Forfeiture and the Law of Succession”).

[21]Secondly, I consider that the Court should seek to discern the policy to which the section was directed. It is possible that it was directed to giving relief to the small class of unlawful killers who were either(a) wives, children or dependants of the deceased but for whom provision was not made in the deceased’s will, or

(b) dependants who were not entitled under the intestacy rules. Such people would take no direct interest in the estate (so the forfeiture rule would have no direct application to deprive them of succession rights) but they would have a potential claim under the 1975 Act. It is possible that the section was directed at this small class and was designed to make clear that their 1975 Act claim (the effect of the will or the intestacy rules being to make no provision for them) was not barred.

[22]But I cannot see why this small class should be so favoured. Why should an unlawful killer to whom the deceased recognised no obligation be more favourably treated by the law than one to whom the deceased did recognise an obligation? It seems to me far more likely that the section was directed to giving relief also to the potentially much larger class of unlawful killers for whom provision was made under the will or under the intestacy rules, but who were deprived of taking that benefit by the operation of the forfeiture rule. The section is designed to make clear that even though the forfeiture rule has deprived them of their succession rights, the forfeiture rule does not preclude the making of an application under the 1975 Act nor (since the right to make an application that must inevitably fail is without point) the making of an order. If that is so, it is difficult to see why the nature of the forfeited interest should determine the availability of relief. A man leaves his wife a legacy of £100,000 and the remainder of his estate to his mistress. His wife unlawfully kills him and is convicted of manslaughter. The forfeiture rule deprives the widow of her legacy. In the aftermath of the death and amid the ensuing prosecution and sentence, preservation of her property interests is not uppermost in the minds of her advisers and they overlook the time limit in the 1982 Act. If the dicta in Re Royse as to the effect of section 3 govern the position then(a) if in the circumstances a legacy of £100,000 was reasonable provision the wife has no claim under the 1975 Act and she gets nothing: but

(b) if in the circumstances reasonable provision would have been a legacy of £105,000 then she will receive an award of £105,000. It is difficult to see what purpose is served by such a rule.

[23]In my judgement the true construction of the section and the discernible policy of the section both point to a reading of section 3 that gives the fullest effect to the words “the forfeiture rule shall not be taken to preclude ….the making of any order on [an] application [under the 1975 Act…”. I would accordingly hold that section 3 permits the Court to make an order under the 1975 Act even though it is the forfeiture rule (not the terms of the Will itself) that mean no provision is made for the Claimant. The exercise under section 3 of the 1982 Act and under the provisions of the 1975 Act is, of course, different from that which would be undertaken under section 2 of the 1982 Act, and it is undoubtedly more advantageous to a claimant to seek relief in time directly under the 1982 Act; the Claimant however is confined to the 1975 Act.

[24]To that jurisdiction I now turn. First, I hold that the Claimant may advance a claim under the 1975 Act. As Vinelott J put it in Re K

[1985] Ch 85

at 102B……. “Despite the revulsion which any person must feel at conduct which leads to the death of another human being it is impossible in the tragic circumstances of this case not to feel sympathy for [the Claimant]” Indeed, for my part I do not think that, on the facts as I have found them, the forfeiture rule serves the public interest. It deprives the one person who devoted himself to the Deceased’s care without significant outside support (albeit that he lapsed at the end) of the benefit she intended for him and confers it upon remote relations most of whom did absolutely nothing for her.

[25]Second, I hold that the Claimant’s claim (being that of an adult son) can only be a claim for such financial provision as it would be reasonable in all the circumstances of the case for him to receive for his maintenance. This means provision which will directly or indirectly enable the Claimant in the future to discharge the cost of his daily living according to the standard established over the years whilst living with his parents (albeit that such provision might be made by way of a lump sum payment). In assessing whether the making of provision is reasonable I should have regard to (and have taken into account) the considerations set out in Espinosa v Burke

[1999] 1 FLR 747

[26]Third, I must balance the factors listed in section 3 of the 1975 Act:-(a) the Claimant has no capital, gave up his modest job to look after his mother, will face employment difficulties in view of his age, his abilities (he is unable properly to read or write) and his criminal record, and will in all likelihood be dependent to a degree on state benefits;

(b) his primary need is for the continuation of the accommodation which has throughout his life been provided for him in the family home;

(c) no person entitled on intestacy has sought to become a party to this application and to place before court their current and foreseeable financial resources and needs;

(d) the claimant is the Deceased's only son (he has only recently discovered that he was adopted), who lived with her throughout his life and cared for her in her latter years, and is someone to whom she recognised an obligation by leaving him her entire estate;

(e) the estate consists only of the house in which they lived (now valued at some £120,000), two life policies with a combined value of about £10,500, and some £5,000 in a bank account plus accrued interest;

(f) the claimant’s conduct in relation to the deceased which (although in the last two months of her life became culpable and blameworthy) had essentially been the faithfully discharge of family obligation for a considerable period.

[27]I am clear that the claimant's conduct does not disentitled him the relief under the Act; the picture that presents itself to me is one of the inadequacy to meet the challenges presented by the deceased's condition, an inability to recognise that inadequacy, and a hesitancy in turning to outside help. The claimant must be and has been punished for the wrong that he did; he has also been punished by being deprived of the provision which the Deceased intended for him. But he should not be further punished by being deprived of the reasonable provision that he might otherwise expect under the 1975 Act.

[28]One obvious way of meeting the claimant's needs out of the resources available would be to give him a sum to meet his immediate and foreseeable financial needs, and to give him a life interest in the house (which would otherwise pass to those presently entitled on intestacy). But an interest in possession trust of that sort will prove expensive to administer, may be impractical in the event of periodic tax charges, and inevitably entails contact being maintained between the claimant and his remote cousins. Some form of clean break is more desirable. The way in which I intend to exercise my discretion is that I will give the Claimant a legacy of £1000 to meet immediate financial needs, and direct the transfer of the house to him outright, leaving the balance of the cash distributable to those immediately entitled on intestacy. There will be those whose conscience tells them that their entitlement should be given the Claimant, and there will be others whose entitlement is so small that they will forego it in the Claimant's favour. But I intend that the Claimant’s pressing need for housing shall be met by leaving him the house outright, and that his financial needs (in so far as not met by state benefits) shall be met by treating the house as a source of capital (by selling a reversionary interest in it or otherwise).

[29]It will undoubtedly be necessary to work out this Order. The sensible course might be for the Claimant to prove the will (a copy of this Order being endorsed upon it), for there to be an assent of the house into his name, for him to receive his legacy and pay the costs of administration, and then for separate trustees (perhaps Mrs Shaw and the two cousins who instructed a solicitor) to be appointed of the residue for distribution between the cousins and remoter relatives. I will make a specific order to that effect if requested.

[30]This judgement is to be treated as formally handed down at 10.00am on 13th July 2006. I will also make an order for the assessment of any publicly funded costs. HHJ Alastair Norris QC………………………………………………29 June 2006