Wright v Waters & Anor [2014] EWHC 3614 (Ch)

[2014] EWHC 3614 (Ch)Case No A30LS146
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue LEEDS DISTRICT REGISTRY
IN THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
AND IN THE ESTATE OF MARY BEATRICE WATERS DECEASED
The Court House
Oxford Row
Venue Leeds LS1 3BGDate 6 November 2014
Before
His Honour Judge Behrenssitting as a Judge of the High Court in Leeds
Between
PATRICIA MARY WRIGHTClaimant(1) DAVID IAN WATERSDefendants(2) SUSAN MARIA WATERSDefendant
David Rose (instructed by Ridley & Hall) for ClaimantNeil Addison (instructed by Steele & Son) for DefendantsHearing Hearing dates: 28, 29 October 2014
JudgmentJudge Behrens :1 Introduction
[1]This is a claim by Patricia Wright against the estate of her mother Mary Waters who died on 29 December 2010 at the age of 80.[2]The estate comprised principally of cash totalling £56,600 and a flat in Preston valued at £85,000. There were modest liabilities leaving a net estate sworn for probate purposes in the sum of £138,701.[3]Mary Waters had 2 children - Patricia Wright born on 9 August 1950 who is now 64 years old and David Waters born on 12 April 1954 who is now aged 60.[4]Patricia Wright has been married 3 times and is now a widow. She has a daughter Victoria Martin born in May 1973. Victoria Martin has 2 children, Anastasia (“Tansie”) and Harry.[5]David Waters is married to Susan Waters. They have 4 children Lucy, Daniel, Harry and Poppy.[6]Mary Waters made her will on 27 January 2009. It made no provision for Patricia Wright or her children and grandchildren. This was explained in an explanatory letter she signed the same day. David and Susan Waters are appointed as executors. Each of their children was left £5,000. There were further legacies totalling £7,000 in favour of her sister in law and a niece. The residue of the estate was left to David and Susan Waters..[7]Patricia Wright’s claim against the estate is put in two ways. First she claims on the basis of a proprietary estoppel. There are two strands to the claim. The first is said to arise as a result of promises made by her father between the late 1960’s and 1980’s in respect of work carried out in two shops owned by her father and mother. The second is said to arise as a result of a promise made by her mother shortly after her father died in June 1986 in relation to a Spanish villa just south of Barcelona.[8]The second basis for the claim is under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). It is not in dispute that Patricia Wright is eligible to make a claim as a daughter of Mary Waters. It is equally not in dispute that she has financial and medical problems. She accordingly contends that it was not objectively reasonable for the will to make no provision for her maintenance.[9]The executors oppose both claims. There are significant disputes as to the facts. The executors contend that the work carried out by Patricia Wright and the vagueness of the promises (even if proved) do not come within a measurable distance of establishing a claim to proprietary estoppel.[10]The principal defence raised by the executors relates to the estrangement between Patricia Wright and her mother and her conduct in relation to a sum of £10,000 sent to her in 1998. As will appear later in this judgment, relations between mother and daughter were difficult. However in October 2001 at a time when her third husband had had a stroke Patricia Wright sent a letter to her mother disowning her, stating that she did not wish to communicate with her and wishing that she was dead. Apart from one short telephone conversation shortly after that letter Patricia Wright did not talk to or see her mother again.[11]The executors contend that Patricia Wright’s conduct disentitles her to any award either on the basis of the 1975 or proprietary estoppel. 2 The evidence[12]I have been provided with lengthy witness statements dealing with a wide variety of matters many of which are not relevant to any of the matters that I have to decide. It is plain that very different impressions were gained of Mary Waters by Patricia Wright and Victoria Martin on the one hand and David Waters and members of his family.[13]Only 5 people gave live evidence before me. The main witnesses were Patricia Wright (who relied on 3 witness statements), Victoria Martin, David Waters and Susan Waters.[14]At the end of the evidence the executors’ solicitor, Basil Dearing was called to deal with a minor query over one item in the estate.[15]Patricia Wright’s case was supported by witness statements from George Woods (who took a neutral stance), Jamie Martin (Victoria Martin’s ex husband), Irene Spencer Woods (Patricia Wright’s cousin) and Kathleen Airey (a friend who met Patricia Wright in 1988).[16]The executors’ case was supported by witness statements from Barbara Basey (Mary Waters’ sister-in law), Lucy Dunleavy (the executors’ eldest child) and 2 solicitors who deal with the execution of the will.[17]As Mr Addison noted in his skeleton argument: Much of the Claimants evidence seems to consist of an assault on the character of her late mother, Mary Waters, in general terms asserting that she was mean and uncaring. Much of the Defendants evidence consists of a defence of the character of Mary Waters. The differences between the statements of the two Grand Children; Victoria Martin (daughter of the Claimant) [pages 211 – 218] and Lucy Dunleavy [pages 256 – 259] (daughter of the Defendants) being particularly marked in this respect.[18]Both Counsel agreed that little if any of this evidence would assist the court in determining the issues that arise under the 1975 Act or proprietary estoppel. Accordingly the cross-examination was confined to the issues that were thought to be relevant. I endorsed that approach. This course enabled the evidence and submissions to be completed within the 2 days allotted for the trial. I shall, therefore in this judgment concentrate on the relevant issues and not deal with many of the matters in the witness statements.[19]It is a very unfortunate feature of this case that there is absolutely no love lost between Patricia Wright and her brother David Waters. Each lost no opportunity of criticising the other. I, of course, have no idea what, if any, negotiations have taken place between the parties. It is, however, a family dispute over a relatively modest estate which cried out for some form of alternative dispute resolution. Patricia Wright has the benefit of public funding. Her costs are said to be of the order of £67,000 inclusive of VAT, The executors’ costs are more modest - £30,000. Whilst Patricia Wright’s costs appear to be high for this type of litigation the fact remains that costs of £97,000 have been spent in respect of an estate worth £139,000. I also note that in his witness statement David Waters has said that he is determined to respect his mother’s wishes and fight the case whatever the cost. 3.1. The shops[20]Patricia Wright left school in 1966 at the age of 16. She was still living at home. She obtained full time (but not particularly well paid) work as a library assistant. She remained living at home with her parents and at no time was required to pay for her board and lodging.[21]In 1968 she became engaged to be married to her first husband. In the same year her parents bought a shop at 215 Leyland Lane, Preston. It was a sweet shop and general store. It was open 7 days a week from 8 a.m to 8 p.m.[22]Patricia Wright says she was required to work in the shop for no wages regularly. She says that she would work regularly in the shop every weekend, most evenings and holidays.[23]David Waters (who was 14 when the shop was bought) also recollects working in the shop. He accepts that Patricia Wright worked in the shop from time to time but suggests that she has exaggerated the extent of her work. For example he suggests that if his mother went into the house to make the tea then Patricia Wright or he would have been asked to look after the shop.[24]Patricia Wright married her first husband in 1971. Patricia Wright said that she continued to work in the shop between 1971 and 1973 a couple of evenings a week and at weekends. She said that they had a house near the shop and from time to time her husband helped. David Waters suggested that after she was married the help was very infrequent.[25]In 1973 Victoria Martin was born. Patricia Wright said she still helped even though they were living some 18 miles away. She said that her father would come and collect her about twice a week and Victoria. She would help in the shop whilst her parents looked after Victoria Martin.[26]In 1975 her parents bought another shop in Eldon Street, Preston. It is not in dispute that Patricia Wright ran the Eldon Street shop from 1975 – 1978 and that the family moved from their property in Southport to the shop in order for her to run it. It is equally not in dispute that no rent was paid in respect of the occupation. There was, however, a considerable area of dispute in relation to the Eldon Street shop. According to Patricia Wright she was not paid anything for running the Eldon Street shop full time. The shop was sold in 1978 because her marriage broke down in 1978 and she could not cope. She said that the shop was profitable.[27]David Waters did not accept that Patricia Wright was paid nothing whilst she was at Eldon Street though he did not know the precise arrangement between Patricia Wright and her father. He said the Eldon Street shop was loss making and it was sold because it had been “run into the ground”. There is some support for David Waters’ evidence in the somewhat partisan witness statement of Barbara Basey who says: While Pat was married to Bob, Mary and Harold set them up in business in a sweet shop in Eldon Street, Preston. Bob kept his job but helped at night but I’m afraid the shop went to rack and ruin, Pat wasn’t cut out to serve in a shop, she hardly helped in Mary and Harold’s shop before she was married, it was beneath her even though she couldn’t get out of it on occasions …[28]Barbara Basey was not cross-examined as she lives abroad. Furthermore, as Mr Rose pointed out, it is not clear where she got the information from. There are no documents relating to the Eldon Street shop so it is impossible to know its purchase price, its sale price or any other details about its profitability.[29]Once the shop in Eldon Street had been sold Patricia Wright went to live in Leyland. Her full time job was as a personnel administrator at Curry’s. Victoria Martin used to go from school to the shop every day and Patricia Wright would collect her from the shop in Leyland Lane. She says that from time to time she helped in the shop during that period.[30]It is Patricia Wright’s case that on a number of occasions her father and mother told her that “she was working for her inheritance”. The evidence on this was very vague. She was not able to give details of when it was said or how often it was said. When she was recalled on the second day of the trial to explain the history in more detail she said that he made the promise “quite a lot”. On each occasion they were in the Leyland Lane shop. David Waters said that he could not imagine his father making that kind of comment. It was never said to him.[31]After their father died in 1986 David Waters was involved in winding up the shop in Leyland Lane and his father’s other business. 3.2 The Spanish Villa[32]At some date possibly 4 or 5 years before he died in 1986 Harold and Mary Waters acquired a villa in Spain just South of Barcelona. There are no documents relating to the acquisition and thus no details relating to its price and the conveyancing. It is thus not clear whether it was paid for jointly or solely by Harold Waters. There is, however, no suggestion that either Patricia Wright or David Waters made any contribution to its purchase price.[33]David Waters thought that, at the date of Harold Waters’ death, the property was still unregistered but, as set out above, the details are very sketchy.[34]In any event Harold Waters died intestate on 2 June 1986. It is common ground that very shortly after his death Mary Waters made a decision to sell the Spanish villa.[35]Patricia Wright (who has carried out her own research) believes that under Spanish inheritance law she was entitled to a one third share of the Spanish villa.[36]Patricia Wright told me that shortly after the funeral her mother rang her and asked her to meet her at the shop. Initially she refused because she was upset at what had been (or had not been said) at the funeral. However she relented and went to the shop.[37]Her mother told her that she had been advised that the property had to be split 3 ways. She had to sell it because she needed the money. As a result Patricia Wright agreed to transfer her share to her mother.[38]Patricia Wright found a solicitor in Southport with the necessary qualification in Spanish Law (David Waters thought his wife was a Spanish Notary) and she attended the solicitor with her mother.[39]Patricia Wright said that her mother told her that when she (Mary Waters) died that she (Patricia Wright) would be able to afford her own villa as she (Mary Waters) would be giving her half of the estate.[40]Patricia Wright says that when they attended the solicitor she signed some document which she believed had the effect of transferring her interest in the Spanish villa to her mother.[41]There is no documentary evidence to support any of these assertions. Equally there is no expert evidence as to Spanish inheritance law in respect of land in Spain where an owner or joint owner dies intestate but non resident and domiciled in the United Kingdom. There is the added difficulty that it is not clear whether Harold Waters was ever registered as the proprietor.[42]David Waters remembered that his mother did decide to sell the Spanish villa shortly after the death of his father. He also accepted that there was a visit to a lawyer in Southport over it. He did not accept that either he or his sister had any interest in the Spanish villa. Certainly he was not asked to sign any document waiving his interest.[43]In fact the Spanish villa was not sold immediately. Mary Waters had a cousin who was a bank manager in Girona who, according to David Waters, organised a private sale to a person who paid the purchase price by instalments. The instalments were paid into a bank account in the Girona bank and not remitted to England until 1997 or 1998.[44]Some time in late 1997 or early 1998 Mary Waters asked Patricia Wright’s husband Ken, who was a solicitor in South Wales, to arrange the transfer of the proceeds of sale from the bank in Spain. It is clear from a letter which Ken Wrightsent to Mary Waters on 12th March 1998 that £34,739.54 was received from Spain. Out of that he paid £10,000 each to Patricia Wright and David Waters and remitted the balance of £14,739.54 to Mary Waters.[45]The £10,000 which was paid to Patricia Wright is considered in the next section. 3.3 The £10,000[46]According to David Waters each of the sums of £10,000 were intended by Mary Waters to be held as investments on her behalf. The £10,000 that was paid to him was invested in BAE shares in the name of his wife Susan Waters. He said that he invested them in Susan Waters’ name so as to avoid any higher rate tax. Both David Waters and Susan Waters told me that Mary Waters took a keen interest in the investment. They said that Susan Waters paid over the dividends to her mother in law twice a year by cheque shortly after they had been received. Susan Waters said that Mary Waters knew precisely when the dividends were due and would ring her twice a year about them especially if for some reason the dividend was late. The dividends amounted to about £300 per year.[47]It is common ground that the £10,000 sent to Patricia Wright was invested in a 6 month High Interest Deposit Bond with Midland Bank on 23 February 1998. The proceeds of that bond were invested in a new 3 year bond. It is also common ground that for approximately 12 months Patricia Wright remitted the interest from the bond to her mother on a monthly basis. According to Patricia Wright this was because Mary Waters was not making much interest on her own investments and because she wanted to help her mother out. The interest amounted to about £30 per month.[48]Patricia Wright is adamant that that the moneys that were sent to her were a gift, not a loan or an investment. Her evidence is supported by Victoria Martin who deals with the matter in paragraph 15 of her witness statement: In 1998 grandma said she had sold the house in Spain and gave mum £10,000 from the proceeds. This was a shock to everyone because grandma was not the kind of person to give money away.[49]In cross-examination Victoria Martin said that her grandmother had arranged for Ken to give David and my Mum £10,000. She (Victoria Martin) understood it to be a gift.[50]It is however quite clear by 2001 Mary Waters did not regard the £10,000 as a gift. Following the death of Mary Waters David Waters found a number of documents in her handwriting which can plainly be dated to 2001. Some of them are in the form of draft letters, some may have been notes setting out events as Mary Waters saw them. It is not suggested that Patricia Wright saw them (except for one letter sent to Victoria Martin) but they are still highly relevant as relatively contemporary documents prepared by Mary Waters.[51]In her notes headed “THE PLAN FOR REVENGE” there are two relevant entries: David advised me to wait until September 18th when my 3 yr bond matured and he would ring Ken then. Sep 21st David rings Ken and asks for the procedure for withdrawing my Bond.[52]In what appears to be a draft reply to the letter sent on 21st October 2001 she said: I doubt if you have told them how you offered to invest £10,000 for me with your friend Penny at Midland Bank, Surrey for 3 years in 1998, oh, I received the first years interest from it, but since then, nothing, and now the Bond has matured you are holding over £11,000 of my money; all year we thought you were being awkward and not transferring my money to me because we did not go to Wales last Christmas, and thought you had your revenge by not inviting us to the wedding but when we asked for my money you put the answerphone on, would not write and explain, just evaded us.[53]When she gave evidence Patricia Wright simply said that she was shocked at the content of the document and that it was untrue.[54]In the Letter of Explanation made at the time of the Will Mary Waters gives 3 reasons for wishing to disinherit Patricia Wright and Victoria Martin. The first is: My daughter has already taken without my consent £10,000 of my savings.[55]Mr Rose pointed out that the IHT declaration sworn by David Waters and Susan Waters did not include the BAE shares which they both acknowledged were held on trust for Mary Waters. David Waters accepted this. He said that he was prepared to let Patricia Wright keep the £10,000 and thus decided after discussion with his lawyers not to mention either £10,000. He did not accept that the failure to include the BAE shares meant that he treated the £10,000 as a gift to himself. 3.4 Events in 2000/2001 leading to estrangement[56]Whilst relations between mother and daughter may not have been particularly good before late 2000 they did not really deteriorate until Christmas 2000. Patricia Wright was living with her husband Ken Wright in Carmarthenshire whereas David Waters and his mother were living in Preston. Thus they did not see each other very often. Thus in paragraphs 22 to 26 of her witness statement she refers to visits made by Mary Waters and/or David in 1997, 1999 and August 2000 - Patricia Wright’s 50th birthday.[57]Both Patricia Wright and Victoria Martin allege that the problems started in December 2000. First they suggest that Mary Waters refused to see or acknowledge Harry (Victoria Martin’s recently born son); second Mary Waters and David Waters’ family pulled out of a visit to Patricia Wright that had been planned for Christmas 2000 and third Mary Waters is said to have refused to send presents to Victoria Martin’s children on the ground that the postage was too high. The first and third of these allegations are controversial. In a letter which was sent to Victoria Martin in about September 2001 Mary Waters specifically refers to Victoria Martin ringing her to thank her for the presents that she had sent. (There is also a note in the chronology prepared by Mary Waters referring to a phone call on May 25th from Victoria Martin thanking her for the parcel of presents.) In the same letter Mary Waters asked for a photograph of Harry and said that she would love to see him. When she gave evidence Victoria Martin said that the reference to presents was untrue and that the request to see Harry was disingenuous.[58]Some time in May 2001 Victoria Martin got married. Mary Waters was not invited to or informed of the wedding. There is no doubt that she was very hurt by this. She had been very involved in Victoria Martin’s upbringing and expressed her feelings in the letter sent in September 2001 and in the notes. On 18th June 2001 Patricia Wright wrote to David Waters explaining the decision about the wedding stating that she fully concurred with Victoria Martin’s reasons for omitting Mary Waters from the guest list. In the letter she said also that she did not want any further involvement with her mother.[59]The problems over the £10,000 bond emerged in 2001 when Patricia Wright failed to send the interest.[60]On 19th September 2001 Patricia Wright wrote a letter to her mother referring to a phone call received that day. The letter referred to the letter sent to Victoria Martin which was said to have caused hurt. It asked Mary Waters to communicate only by letter.[61]Sometime in early October 2001 Ken Wright had a serious stroke. It left him paralysed down his right side and brain damaged. He did not recover and died at the end of October 2001. 3.5 The letter of October 2001[62]On 21st October 2001 at a time when she was no doubt worried and stressed because of Ken Wright’s stroke Patricia Wright wrote a letter to her mother and a rather longer letter to David and Susan Waters. I do not intend to set out the letter in full. It includes: Further to my telephone call this morning I wish to formally advise you that I do not wish to have any communication with you at all in the future. As far as I am concerned I no longer have a mother, you are not fit to call yourself that. You could not care less that [Ken] is so seriously ill and could die at any moment and even if he doesn’t that the likelihood is he will be so severely disabled he may never come home. All you care about is your son and his family. Well as far as I am concerned you are welcome to each other – you won’t have anyone else. You were right when you said it should have been you instead of my father – I wish it had been.[63]The letter to David and Susan Waters is longer but in similar vein. Patricia Wright starts by disowning them as being connected with her, her husband or family. It concludes: As far as I am concerned I have no immediate family any more – as Ken would say, you are Kadesh.[64]There was one further short telephone call between Patricia Wright and her mother after this letter. Otherwise there was no further contact between them for the next 9 years. 3.6 The Will[65]Mary Waters’ will was executed on 27th January 2009. There is no challenge to its execution and thus it is not necessary to set out the circumstances in which it was executed.[66]When instructions were taken for the will Mary Waters was advised to set out her reasons for excluding Patricia Wright. She did so in a letter dated 26th January 2009 which reads: Having made my will I would like to add in this letter, to be opened on my death that I do not wish my daughter Patricia or her daughter Victoria to inherit any part of my estate. The reasons are: 1. My daughter has already taken without my consent £10,000 of my savings. 2. My daughter has been a constant source of trouble to me and my husband for many years. 3. There has been no contact for almost 9 years. She has shown no interest in my welfare whatsoever. I am sure my daughter will dispute these facts, but I am adamant that she has already had her just rewards and she will receive nothing more from me 3.7 Death of Mary Waters[67]Mary Waters was diagnosed with terminal cancer in September 2010. According to David Waters she made the most of those 3 months being taken out on a number of occasions by members of his family and revisiting Spain.[68]She did not want Patricia Wright to be informed of her condition. In early December 2010 George Woods (Uncle George) was informed in the knowledge that he would tell Patricia Wright. Patricia Wright was informed of her mother’s condition by Uncle George on 10th December 2010. She made no attempt to make any contact with her mother either by visiting or by phone or letter. When she gave evidence she pointed out that she was in a wheel chair and could not have gained access to the first floor flat in which her mother was living. She also suggested that if she had tried to visit she would not have been let in. However it is not in dispute that she made no attempt to get in touch.[69]Mary Waters died on 29th December 2010. Uncle George informed Patricia Wright of her mother’s death. On 1st January 2011 Patricia Wright wrote to David Waters informing him that she had registered a caveat stating that unless the matter could be dealt with amicably the matter would have to proceed through the Courts. She did not attend the funeral on 5th January 2011. 3.8 Matters relevant to the 1975 Act[70]As will appear below in considering the matters relevant to an award under the 1975 Act the Court is bound to have regard to a number of factors under section 3:
‘(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future; (b) the financial resources and financial needs which any other applicant under section 2 of this Act has or is likely to have in the foreseeable future; (c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future; (d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased; (e) the size and nature of the net estate of the deceased; (f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased; (g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.’
[71]There are no other applicants under the Act. It is not suggested that either David Waters or Susan Waters has any particular financial need. They have not disclosed their assets. I have set out the size and nature of the estate earlier. I shall consider the nature of Mary Waters’ obligations to Patricia Wright together with issues of conduct when I reach my conclusions.[72]In this section therefore I shall consider the financial needs, resources and physical disabilities of Patricia Wright.[73]Patricia Wright is 64. She lives alone in rented accommodation in Pateley Bridge having moved there last year from Pudsey in Leeds. Her monthly income is £2,065 made up of state pension (£126.01 per week), pension guarantee credit (£73.59 per week), disability living allowance (£134.40 per week), housing benefit (£137.31 per week) and a small private pension (£23 per month).[74]She has listed expenses totalling £2,175.07. Although the figures are not challenged it is pointed out that there are significant sums for cigarettes, presents and Sky TV. It is also pointed that the rent in Pateley Bridge is significantly higher than the rent in Leeds.[75]Patricia Wright suffered a heart attack in 2007 and is wheel chair bound. She suffers from heart disease, angina, diabetes, osteoarthritis, depression, vertigo and cervical spondylosis. She takes substantial medication.[76]She has obtained a report from an occupational therapist who has identified significant items of equipment from which Patricia Wright would benefit and future service provision and holidays.[77]Mr Rose has helpfully costed the equipment at £1,167.32 per annum and the costs of services at £6,725.04 per annum. It is to be noted that included in the costs of services is £4,000 p.a for holidays and £78 for online shopping. I was told that Patricia Wright does her shopping online so this means that the figure is included in her costs of food in her list. 4.12. The 1975 Act[78]The Act has been the subject of considerable judicial consideration. I do not propose to give an extensive discussion of those authorities but it is right that I should make a number of comments. First, the authorities established that there is a two or three stage test. The court must first determine, by taking account of the section 3 factors, whether the effect of the 2009 will fails to make reasonable provision for Patricia Wright. If it so fails, the second question is whether it is reasonable to make any award at all. Thirdly, if so, how much? Again, for the purpose of the second and third test, it must again take into account the section 3 factors.[79]Second, the test is objective. It is not a question of whether it might have been reasonable for the deceased to assist her daughter, but whether in all the circumstances, looked at objectively, it is unreasonable that the effective provisions governing the estate did not do so. The effective provision in this case is, of course, the 2009 will.[80]Third, as this is a claim by a child, ‘reasonable financial provision’ is defined by reference to maintenance. There has been a significant discussion in the authorities of the meaning of ‘maintenance’ and there is a helpful observation in paragraph 34 of Ilott v Mitson [2011] EWCA Civ 346,I believe it is also reported in other places but in that case Sir Nicholas Wall was citing, with approval, observations of Butler-Sloss LJ, in an earlier case of Espinosa v Bourke [1999] 1 FLR 747:
‘The court has, up to now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.’
[81]There are other observations, including those made by Goff LJ, in Re Coventry [1980] Ch 461,which are referred to in paragraph 5604 of Williams on Executors.[82]Fourth, sections 3(5) and 3(6) of the Act require the court to take into account ‘facts as known to the court at the date of the hearing’. ‘Resources’ includes earning capacity and, in considering financial needs, the court has to take into account obligations and responsibilities - see section 3(6).[83]There is considerable authority on claims by adult children; the most recent decision is the case of Ilott v Mitson. I do not intend to cite extensively from that case but I take two matters from it. First, the court has to make a value judgment after taking into account the section 3 factors. [See paragraph 25]. Second, an adult child does not have to show a moral obligation or that there were special circumstances in order to succeed under the 1975 Act. If the facts disclose that an adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely that he will succeed in the application without some special circumstance such as a moral obligation. [See paragraph 27]. Furthermore, Sir Nicholas Wall cited observations of Aldous LJ in Espinosa in the following way:
‘I accept that in certain circumstances the ability of an applicant to earn may mean that an application made under section 1 will fail unless special circumstances are shown. However, as stated by Oliver J in the Coventry,case the case should not be approached upon a preconceived notion that there was a heavy burden on applicants of full age. In these days where persons without qualifications find it difficult to obtain employment, the court should not approach the question of what is the appropriate maintenance with any preconceived view. All the circumstances of the applicant must be considered.’
[84]I was also referred to the decision of Re Pearce All England Official Transcripts (1997-2008). That was a case where at first instance I had held there was a moral obligation on a father arising out of the very substantial amount of work carried out by the son coupled with the promises that were made to him by the father. My decision was upheld by the Court of Appeal. In the course of his judgment Nourse LJ said: In my judgment [the judge] was entitled to conclude that there was such an obligation. Moreover, the promises having been that the plaintiff would inherit the farm, the obligation was one which would not arise until the deceased's death. I do not say that it was cast in stone. No doubt it could, for example, have been discharged if the plaintiff had acted inappropriately in the meantime. But there was no evidence and no finding to that effect.[85]Even if there was some sort of moral obligation arising out of the work carried out by Patricia Wright at the shop the question arises as to how far it has been discharged by her conduct. 4.2 Proprietary Estoppel[86]I was referred to the decision in Thorner v Major [2009] 1 WLR 776. In particular Mr Addison referred me to paragraph 15 of the speech of Lord Scott where he identified the elements required for proprietary estoppel: “first, a representation made or assurance given to the claimant; second, reliance by the claimant on the representation or assurance; and, third, some detriment incurred by the claimant as a consequence of that reliance. These elements would, I think, always be necessary but might, in a particular case, not be sufficient. Thus, for example, the representation or assurance would need to have been sufficiently clear and unequivocal; the reliance by the claimant would need to have been reasonable in all the circumstances; and the detriment would need to have been sufficiently substantial to justify the intervention of equity “[87]Mr Rose referred me to paragraph 76 of the judgment of Lord Walker where he discussed the clarity necessary to found an estoppel: I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context. I respectfully concur in the way Hoffmann LJ put it in Walton v Walton [1994] CA Transcript No 479 (in which the mother's "stock phrase" to her son, who had worked for low wages on her farm since he left school at 15, was "You can't have more money and a farm one day"). Hoffmann LJ stated, at para 16: "The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made." 5.1. Patricia Wright[88]I regret that I did not find that Patricia Wright was a reliable witness. My starting point is the issue about the £10,000 gift or investment. This is an area where there is considerable documentary evidence and is thus an area where Patricia Wright’s oral evidence can be tested. In the light of the evidence I have come to the conclusion that the £10,000 sent to Patricia Wright in early 2008 was not intended as a gift but was as a result of an offer by Patricia Wright to invest the money in a high interest bond. There are a number of reasons for this:[1]As Victoria Martin said in her witness statement a gift of £10,000 was out of character for Mary Waters. She was not the kind of person to give money away.[2]The payment of the interest to Mary Waters at the rate of £30 per month for 12 months is wholly consistent with the bond being held by Patricia Wright on behalf of her mother. Patricia Wright’s explanation for this payment of interest is, to my mind unconvincing.[3]The documents prepared by Mary Waters in 2001 give a clear account of her version of what occurred in 1998. Even though Mary Waters was not alive to be cross-examined these documents were written by her in 2001 and show precisely her concerns in 2001 when the bond expired and the attempts that she made then to have her money returned. It is to my mind of some significance that none of the intemperate letters sent by Patricia Wright to her mother or David in 2001 attempted to deal with the requests about the £10,000. I have no hesitation in preferring the account in those documents to the evidence of Patricia Wright.[4]I also accept without hesitation the evidence of David and Susan Waters in relation to the British Aerospace shares. It seems to me to be wholly consistent with Mary Waters’ character that she should have been chasing Susan Waters for the dividend payments. I accept that they were paid over to her mother in law.[89]It follows that Patricia Wright was not telling me the truth in relation to the £10,000. In those circumstances I did not feel I could rely on her evidence in relation to the controversial evidence in relation to the 1970’s and 1980’s 5.2 Victoria Martin[90]I have similar problems in relation to Victoria Martin’s evidence. The notes made by Mary Waters specifically referred to telephone call made by Victoria Martin on 25 May 2001 in relation to the presents that Mary Waters had sent. Thus the reference to it in the letter was consistent with that file note. Furthermore the request for a photograph of Harry and the wish to see him are wholly inconsistent with her evidence. 5.3 David Waters[91]In general terms I thought David Waters was an honest witness. Thus I have no difficulty accepting his evidence in relation to the British Aerospace shares and I accept the evidence that he was never asked to sign any document in relation to his interest in the Spanish villa.[92]However his animosity towards his sister was self evident and it seemed to have affected his evidence on the amount of work he says Patricia Wright carried out at the shop. I think there was force in the criticism that he was not around for much of the time and thus was not in a position to say that Patricia Wright’s attendance was as little as small as he contended it was. 5.4 Susan Waters[93]I thought that Susan Waters was an honest and reliable witness. She did not really know Patricia Wright and thus did not seek to criticise her. She was only really cross-examined on the British Aerospace shares. I have no hesitation in accepting her evidence on that issue. 101. Findings[94]In the light of my assessment of the witnesses I make the following findings:[1]I accept that that Patricia Wright helped/worked in the Leyland Lane shop in the evenings and at weekends without pay. It is not possible to assess the extent of the help accurately. In my judgment it is likely to have been more that that contended for by David Waters but less than that suggested by Patricia Wright. There was in my view exaggeration on both sides. As against that Patricia Wright was provided with free board and lodging and also after 1978 received help with her business from her father. Equally her parents were involved in looking after Victoria when she came back from school and at other times.[2]I also accept that on limited occasions Patricia Wright’s father referred to the shop as being her inheritance. I do not however accept that the work carried on by Patricia Wright was “in reliance” on those remarks. It was part of the quid pro quo for what was provided for her by her parents in respect of the board and lodging provided, the looking after Victoria, and the help with her business.[3]Whilst I accept that Patricia Wright worked in the Eldon Street shop for 3 years from 1975 to 1978, I am unable to make any finding as to whether she was working without pay. I am simply unable to make any findings as to the financial arrangement between herself and her parents in respect of it. On the face of it it seems unlikely that Patricia Wright would have been willing to work full time at the Eldon Street shop for 3 years without any form of remuneration or profit share. Equally I am unable to make any finding as to whether, as Patricia Wright said it was profitable or, as David Waters said it was “run into the ground”. I note that none of the representations are said to have been made at Eldon Street.[4]I accept that shortly after Harold Waters’ death Patricia Wright and her mother visited a solicitor in Southport. I also accept that the consultation was in respect of a sale of the Spanish villa and that the Southport solicitor (or perhaps his wife) was a qualified Spanish notary. I make no further findings in relation to the visit. In particular I am not satisfied that that Patricia Wright had any interest in the Spanish villa or that she believed that she had. I am not satisfied that Patricia Wright signed any document waiving her rights in respect of the Spanish villa. Whilst it is possible that her mother told her that she would give her half the estate I am not satisfied that Patricia Wright acted on that statement to her detriment. Conclusions[95]In the light of the above findings it is to my mind clear that the claims based on proprietary estoppel fail. I am not satisfied that there were sufficiently clear representations that were relied on by Patricia Wright. Equally I am not satisfied that mention of inheritance by Harold Waters was intended to be taken seriously or was one that might reasonably have been expected to have been relied on by Patricia Wright. 7 Claim under the 1975 Act[96]As set out above I have to make a value judgment whether the effect of the 2009 will fails to make reasonable provision for Patricia Wright. In so doing I have to take into account all of the circumstances of the case including the factors set out in section 3 of the 1975 Act.[97]In Patricia Wright’s favour are the facts that she is a daughter of the deceased, that she did give some help in the Leyland Lane shop, that she suffers from ill health, that she is living in necessitous circumstances and that no other beneficiary has demonstrated a need for Mary Waters’ bounty. Those factors have to be balanced against the factor set out in subsection (g) – that is to say the conduct of Patricia Wright.[98]The relevant conduct, to my mind comprises her conduct with regard to the £10,000 which she invested on behalf of her mother and refused to return, the letters she wrote in September and October 2001 especially the letter written in October 2001 and the complete failure to contact her mother at any time after 2001. In assessing this conduct the Court can take into account its effect on her mother as demonstrated in the letter of 26 January 2009 which was placed with her will.[99]Mr Rose sought to excuse the letter sent in October 2001 on the basis that Patricia Wright was suffering from stress as a result of Ken Wright’s stroke. To my mind Patricia Wright’s stress does not begin to justify the letter. First the letter of October 2001 follows on from the letter sent in September where she said that her mother was only to communicate in writing. It did not come out of the blue. Second the language of the October 2001 letter can only be described as extreme. As set out above she formally disowned Mary Waters as a mother stating she was not fit to call herself that. She concluded by wishing her dead. Third, if the wording of the letter was brought about solely by the stress of Ken Wright’s illness Patricia Wright had plenty of opportunity to retract it after his death. She chose not to do so. Instead they did not communicate for 9 years.[100]Even if Patricia Wright’s work in the Leyland Lane shop created some sort of moral obligation owed to her by her mother, it was not, as Nourse LJ pointed out in Re Pearce cast in stone. To my mind it was discharged by the conduct I have set out above.[101]When I take into account all the section 3 factors my value judgment is that Patricia Wright’s conduct outweighs all of the factors in her favour. In those circumstances I have come to the conclusion that it was objectively reasonable on the facts as known to me to-day for the will made by Mary Waters on 27th January 2009 to make no provision for Patricia Wright.[102]It follows that the claim under the 1975 Act fails.