Martin v Williams [2017] EWHC 491 (Ch)

“…in substance, after various mortgages and debts were paid off, [Mr. Martin’s] net estate principally comprises his one half interest in 20 Coburg Road plus around £20,000 and a small share of another property…”

“It is common ground that the appropriate standard of review is that applying to the exercise of a discretion. That means that DJ Million must be shown either to have made an error of law, for instance by applying the wrong test or failing to take into account matters that he should have considered, or taking into account matters he should not have considered, or reaching a conclusion that was perverse.”

“In order to succeed the appellants must satisfy the Court of Appeal that the judge failed to take proper account of the guiding factors laid down in section 3 of the 1975 Act, or that he has failed to exercise his discretion as to the amount of the lump sum judicially: for example, as a result of applying a wrong principle of law, or through a misunderstanding of the facts of the case, or in arriving at an amount which is, for some other reason, plainly wrong. As Nourse L.J. said in Re. Krubert [1997] Ch. 97 at 102F: “So the question on the appeal is whether the [recorder’s] decision as to the provision she should receive was wrong in principle or, viewed as an exercise of discretion, plainly wrong.”

“107. So far as her monthly outgoings are concerned, it is agreed that these are around £900 a month. These are itemised in some detail in a letter dated 21st March 2013, a few of the items included within that schedule have been removed so that the total is around £900 but once they have been removed it is quite plain that [Mrs. Williams] is living ataround a subsistence level, at any rate compared with that at which she and [Mr.Martin] lived before his death. As she said in evidence, before [Mr. Martin] died, shepaid one-half of the utility bills but [Mr. Martin] continued to pay…other householdbills such as council tax, household insurance, television licence and much of thegroceries and toiletries… 108. It is clear from that and [Mrs. Williams’] evidence, which I accept, that subsequent tothe death of the deceased, she has had, to put it mildly, to tighten her belt and lives, asshe puts it, a hand-to-mouth existence, waiting for offers at the supermarket and using vouchers and use public transport…”

“My current outgoings total approximately £1,300 per month. This includes all my personaland household expenses. I have significantly reduced the level of my lifestyle as I now haveto pay all of the bills. It is difficult to save for my future and I feel as though I am living handto-mouth, which is not what [Mr. Martin] would have wanted for me.”

“…the overall picture which emerges is that before his death [Mr. Martin] was contributing considerably more than [Mrs. Williams] to their joint expenditure because, as I have already indicated, it was the deceased who paid the bulk of household and other bills. In broad terms, I accept [Ms. McQuail’s, counsel for Mrs. Williams] submission that the claimant’s contribution to their joint expenditure was in the region of £2,000 per annum, whereas the deceased’s was in the region of £7,000. What that does is serve to demonstrate the broad level of support the deceased provided…”

“produced reams of highly complicated schedules going down to pennies trying to demonstrate who is or was contributing more and what each other’s expected expenditure is or will or is likely to be. It is almost impossible without the assistance of expert evidence for any of that to be properly and fully assessed and digested…” ii) Although it is wrong to describe the schedules themselves as complicated, the extent to which reliable inferences can be drawn from entries in bank statements as to the respective contributions of Mr. Martin and Mrs. Williams before Mr. Martin’s death must be doubted. Although the Judge might not have put his concerns very clearly, I sympathise with the point he was trying to make. iii) On an appeal, it is even harder to make findings regarding the levels of expenditure on the part of Mr. Martin and Mrs. Williams that can be deduced from the schedules or (for that matter) from the bank statements from which the schedules are derived. Certainly, I consider that it would be entirely wrong for me to venture into this kind of factual detail on an appeal. There are, however, two points which it is necessary to bear in mind. iv) First, although Mr. Martin “separated” (and I place the word in quotation marks quite deliberately) from his wife in mid-1994 and began living with Mrs. Williams from then on, Mr. Martin maintained what can only be described as an unusually high level of connection with Mrs. Martin. Not only did they not divorce, but (for a period at least) they carried on in business together, and maintained the Accounts, into which they both paid and from which they both drew. After Mr. Martin’s death, the Accounts vested in Mrs. Martin alone, and whatever drawings Mr. Martin made to finance his life with Mrs. Williams would have ceased. It might be difficult to assess in what amount these payments were made, but the fact that they occurred and that Mrs. Williams benefited from them cannot, in my judgment, be questioned. To that extent, therefore, Mrs. Williams was the poorer on the death of Mr. Martin, and this explains Mrs. Williams’ reference (in paragraph 124 of her first statement, quoted at paragraph 254 above) to having to reduce the level of her lifestyle and living hand-to-mouth after Mr. Martin’s death. v) From this it follows, secondly, that the Judge was entitled to infer a contribution by Mr. Martin to his household with Mrs. Williams, and was entitled to review Mrs. Williams’ expenditure figures in that light. I do not find the Judge’s conclusion (which he derived from the schedules produced by Ms. McQuail) that the annual contribution to the household was £7,000 on the part of Mr. Martin (i.e. about £600/month) and £2,000 on the part of Mrs. Williams to be an unreasonable one. Viewed in this light, I do not consider that the Judge’s concluding paragraphs can seriously be criticised: “112. Drawing those strands together, the view I take is that if one looks at this in a sensible and practical way and bearing in mind the sort of expenditure which [Mrs. Williams] and [Mr. Martin], when he was alive, were outlaying…the appropriate monthly level of expenditure of the claimant is more in the region of £1,200 to £1,500 per month with the upper figure being the appropriate one to use. 113. I should say that I am well aware that that is not descending into any detail at all, but one has got to look at this in the real world and the real world was that the deceased was considerably better off than the claimant. It is inconceivable that he would not have been more than willing and, indeed, it would have been perfectly natural for him to spend considerably more of his resources on his joint life with the claimant than the claimant did simply because he had more money than her and that is what he had been doing since 1994. Generally, couples do not spend at the level of the lowest common denominator but at a slightly higher one which, of course, is consistent with the overall picture which emerges from the financial analysis produced by [Ms. McQuail] which I have just referred to and broadly accept.”

“114. I have an interest in a property at 60 Slade Road, Portishead, BS20 6BW. The property was my father’s, until his death in 2008. When my sister, Jill, was widowed, she returned from living in Australia and moved into the property with my father. Under the terms of my father’s will his estate, of which the property was the most significant asset, passed to my sister and me in equal shares… 115. I believe that the property is valued at approximately £215,000. 116. I do not consider my interest in 60 Slade Road, Bristol, to constitute an available asset. My sister, Jill, is 70 and widowed, and currently lives there on her own. Jill lived there with my father and cared for him until he died. She has no intention of leaving the property, and I would never consider asking her to leave, as it would go against the wishes of my late father. My father expressed very emphatically that this house was to be a roof over my sister’s head for her life and my father spoke to Norman and I about this. My father was of the view that Norman would look after me financially whereas Jill needed more financial help. I am advised that Jill would be very likely to have good legal grounds for resisting any attempt by me to realise the proceedings of the property by forcing a sale. 117. Despite my interest in the property, it would be entirely inappropriate for me to live at 60 Slade Road. My life is in Dorchester now. I have many friends here as well as my job, and I consider it to be my home. I could not consider relocating to Bristol. Further, I have not lived with my sister since we were children and it would be entirely inappropriate to impose myself upon her.” her own. Jill lived there with my father and cared for him until he died. She has no intention of leaving the property, and I would never consider asking her to leave, as it would go against the wishes of my late father. My father expressed very emphatically that this house was to be a roof over my sister’s head for her life and my father spoke to Norman and I about this. My father was of the view that Norman would look after me financially whereas Jill needed more financial help. I am advised that Jill would be very likely to have good legal grounds for resisting any attempt by me to realise the proceedings of the property by forcing a sale. iii) This evidence is not particularly full, and proceeds very much on the wrong premiss. The test under the 1975 Act is not what is “appropriate” for Mrs. Williams (or her sister), still less what their father considered should be done for Mrs. Williams by way of financial provision by Mr. Martin. The fact is that Mr. Martin has left Mrs. Williams in the position she is in, and it is for Mrs. Williams to demonstrate that the testamentary dispositions of Mr. Martin, in the Will, should be re-written. iv) Even taking Mrs. Williams’ evidence at its highest, what she says is insufficient to justify leaving 60 Slade Road out of account. Moreover, in cross-examination, Mrs. Williams agreed that her sister could easily downsize (“She can if she wants to.)”

“122. Prior to Norman’s death, the entirety of Norman’s pension was paid into the Joint Account (which was mainly used by me). In the months before he died, Norman’s pension was £3,116.42… 123. Since Norman’s death, Norman’s pension provision (which I became entitled to) from the NHS was reduced to about £1,670 (this figure fluctuates slightly). Therefore, the income paid into the Joint Account has effectively been reduced since Norman’s death by around £1,450. 124. In addition to that income, my own income is made up from my pension with Dorset County Council which is £674.38/month. I also have a state pension of £574.24/month (i.e. a total of £1,248.62/month). Therefore my total monthly income is £2,918.62 (which equates to £35,023.44/annum), 125. The only significant asset that I have from which to live is money in the Reserve Account. The current balance of this Reserve Account is about £26,839.81…and Building Society Accounts totalling about £17,000.”

“In total my monthly outgoings are around £4,500. These outgoings are essentially as they were prior to Norman’s death. There is therefore a monthly shortfall of around £1,500 based on my current income (which equates to an annual shortfall of around £18,000). As I explain below, I fear that my health conditions will mean that it is likely that I will require the assistance of professional carers in the not-too-distant future.”

“There have been a number of cases under the Inheritance (Family Provision) Act 1938 previously in force, and also some cases from sister jurisdictions, which have dealt with the meaning of “maintenance”

“Is the provision sufficient to enable the dependent to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?”