Case No. BV20D0029

v Radwan [2017] EWCA Civ 1545.(ii) That said, on occasions wider family members may show themselves prepared to assist, willingly and under no pressure from the court to do so. Two distinct scenarios spring to mind;(a) Whether a spouse's family will be likely, if requested, to come to his or her aid in meeting specific needs personal to the spouse in question and;(b) Whether a spouse's family will be likely, if requested, to come to his or her aid in making a payment to the other spouse to assist in bringing financial remedy proceedings to a conclusion.(iii) The first scenario is not uncommon. If means are available, the wider family, although under no legal obligation to do so, may willingly help with buying a house or meeting income needs if the alternative is homelessness and penury. But the evidence of willingness to do so must be clear. Mere speculation, or optimistic assumption, is insufficient.(iv) The second scenario is rarer, for obvious reasons, although it can unlock cases and bring about settlement. For example, the family of a spouse may offer to pay the receiving spouse a lump sum to avoid sale of the marital home. Again, in my judgment, there must be clear evidence to justify such a finding. Speculation and optimistic assumption will not suffice.(v) The court should not place pressure on the third party who is perfectly entitled to decline to provide support. As Deputy High Court Judge Nicholas Mostyn QC (as he was then) said in TL v ML [2005] EWHC 2860 at para 101:"The correct view must be this. If the court is satisfied on the balance of probabilities that an outsider will provide money to meet an award that a party cannot meet from his absolute property then the court can, if it is fair to do so, make an award on that footing. But if it is clear that the outsider, being a person who has only historically supplied bounty, will not, reasonably or unreasonably, come to the aid of the payer then there is precious little the court can do about it."The judge was there addressing the second of my suggested two scenarios, but in my view his remarks apply with equal force to the first scenario.(vi) In either scenario, where the evidence shows, to the requisite standard of proof, that third party family members will likely provide financial support to one or other of the spouses, that, in my judgment, constitutes a resource that a court is entitled to take into account. To do otherwise would be artificial. As to the sort of evidence which the court will evaluate when deciding upon the likelihood of future assistance:(a) Usually, the court will look to see whether bounty has been provided in the past, in what quantity and over what amounts of time, as evidence of a pattern.(b) Additionally, the court can look at specific offers of long-term future financial support made to a spouse before or after marital breakdown.(c) Offers of interim provision to tide the spouse over with assistance towards legal fees and income needs during the period of litigation will be of very limited evidential relevance to the question of whether long-term future support will be forthcoming. Usually, such payments are transitory in nature, designed to assist the recipient spouse with the demands of the litigation.(d) Absent clear evidence establishing (i) a track record of historic payment and/or (ii) reliable representations of future subvention, the court will be hard pressed to be satisfied of this class of resource.”The Law: inheritance24.In Alireza v Radwan [2018] 1 FLR 1333 King LJ reviewed the principles pertaining to inherited wealth, including where forced heirship applies. “32. The first question therefore is 'does the wife's father's wealth/ the wife's inheritance prospects constitute a financial resource which she has or is likely to have in the foreseeable future?'33. Mr Peel says not and reminds the court that in the ordinary course of events a party's inheritance prospects are disregarded by the court. In Michael v Michael [1986] 2 FLR 389 Nourse LJ said (at 395):"I am of the clear opinion that s.25(20(a) of the Act of 1973 as amended, whilst it is primarily concerned with property and financial resources in which there is a vested or contingent interest, is not exclusively so concerned. Indeed, its broad and somewhat informal language demonstrates that it was intended to operate at large and not in some strait-jacket tailored to the sober uniforms of property law. Thus, there can be no doubt that it could in certain circumstances extend to something which in the language of the law is a mere expectancy or spes successionis, for example and interest which might be taken under the will of a living person.34. Nourse LJ went on to give an example of a case where there was clear evidence that a person had a terminal illness, that property was left to the respondent in his will and that it was highly improbable the testator would revoke the will. Having given such an example he went on (at 396)"…. However those facts, being extremely special demonstrate that the occasions on which such an interest will fall within s,.25(2)(a) of the Act of 1973 as amended, are likely to be rare. In the normal case uncertainties both as to the fact of inheritance and as to the times at which it will occur will make it impossible to hold that the property is property which is likely to be had in the foreseeable future."35. Mr Todd for his part relies on the decision of Munby J (as he then was) in C v C (ancillary relief trust fund) (C v C) [2010] 1 FLR 337.36. In C v C the husband had a vested interest in property in that, upon the death of his widowed step mother, he and his three siblings would inherit an estate as tenants in common in equal shares. This was not a discretionary trust. The trustees had no power to appoint 'even a farthing' [19] to the husband except with the written consent of the widow who could give it or withhold at her 'unfettered and uncontrolled' discretion. As Munby J said:"…and the husband and the court have to take the widow as they find her. As against the widow there can be no question of exerting any 'judicious encouragement' (see Thomas v Thomas [1995] 2 FLR 668 at 670), as there might be if what was in issue was the exercise by the trustees of their powers if they had any that were relevant."37. Given that the husband's interest was vested and the likelihood was that the reversion would fall in in about 15 years (that being the actuarial life expectancy of the widow), Munby J concluded:"I confess that on this crucial issue my mind has wavered. On any view, as it seems to me, this case is at or very close to the outer extremity of what can properly be considered a 'financial resource' which a spouse is 'likely to have in the foreseeable future'. At best it is, to adopt Cumming-Bruce LJ's metaphor, only dimly visible. But on balance I have concluded that… the husband's interest is indeed such a resource. In other words, I am persuaded though I have to say without much enthusiasm, that the question posed… is to be answered in the affirmative. "38. Munby J said that his decision would have been different had the likelihood been of the husband receiving substantially less than the current value of the estate on the death of the widow, or had the widow's life expectancy been greater than he found it to be. Munby J went on to put his decision that the husband's vested interest was a resource in context:"[66] I must emphasise that, consistently with the terms of the preliminary issue, all I have decided is that the husband's interest in the trust fund is a 'financial resource' which he is 'likely to have in the foreseeable future'. I have not decided that it would in fact be appropriate to make an order of the kind made in Priest v Priest and Milne v Milne or, indeed, appropriate to make any order at all in relation to his interest in the trust fund. All I have decided is that his interest in the trust fund is, within the meaning of s 25(2)(a), a 'financial resource' which he is 'likely to have in the foreseeable future', and, accordingly, something which s 25(2) requires the judge at the final hearing to 'have regard to'. Having had regard to it, the judge may decide to make some order in relation to the husband's interest under the trust. On the other hand, the judge, having had regard to it, may decide not to make any order at all in relation to the husband's interest under the trust. It is entirely a matter for the judge who is called upon, as I have not been, to exercise the discretion conferred by ss 24 and 25."39. In my judgment the words of Nourse LJ in Michael hold good 30 years on and in the ordinary course of events uncertainties both as to the fact of inheritance and as to the times at which it will occur, will make it impossible to hold that an inheritance prospect is property which is "likely to be had in the foreseeable future."40. The present case is different. The wife's inheritance prospects do not have the inherent uncertainty found where a will is made in a country such as England where there is no concept of forced heirship. In my view, a prospective inheritance which has the certainty brought to it by the laws of forced heirship, is capable of being a "financial resource" which the wife "has or is likely to have in the foreseeable future".41. Mr Peel sought to persuade the court that there remained uncertainties which should mean that, notwithstanding the forced heirship laws, the court should disregard the wife's inheritance prospects. He suggested by way of example that the father could give all his money away to charity or there could be some sort of cataclysmic political event which would mean he would lose his wealth. There was no evidence before the court to that effect and the wife chose not to call her father to give evidence. In those circumstances a court would be entitled to conclude, as the judge did, that a portion of the father's estate would indeed come to the wife in 16+years.42. Having said that, as Munby J explained in C v C, all that such a finding does is to conclude that the prospective inheritance is a section 25(2)(a) resource; it does not mean that it is inevitably appropriate for the court to make an order whereby the meeting of the needs of the wife is in any way dependant on the prospective inheritance.”My findings and the parties’ evidence25. I turn to my conclusions on the primary issues. In so doing I have considered the totality of the written and oral material before me, weighing it up holistically and assessing how it interlocks.26.Each party was robustly cross examined for a full day. Both, I am confident, did their best to tell the truth; occasional confusing, or apparently inconsistent, sentences in narrative statements did not undermine their overall credibility. In particular, I reject the submission that H was dishonest on a number of matters, including colluding with his father (a “charade” as was submitted on W’s behalf) about the current unavailability of support from that quarter. On the contrary, I thought he was candid and frank, for example in acknowledging the pressure which W was under in respect of the Post-Marital Agreement. W was notably more anxious in the witness box, and H more composed. I felt that W is, underneath her undoubted nervousness, determined and resolute, particularly with regard to the children. Where there were disputes of evidence, they were, in my judgment, the product of different perspectives, or misunderstandings. 27.Both, I am sure, have been placed under enormous strain by these proceedings. The emotional toll on them, their relationship and, indirectly, the children cannot be underestimated. The Pre-Marital Agreement28.This Agreement was the product of discussions which lasted a number of months (the parties first discussed it in January 2004, their lawyers started corresponding in June 2004, and the first draft was prepared on 23 June 2004). Both parties had the benefit of English and Swiss legal advice; in W’s case her English lawyers were Macfarlanes. It is dated 12 August 2004, about 3 weeks before the marriage, and signed by the parties. The marriage had been delayed to enable a 3 week cooling off period after signing. Equivalent Swiss documents were entered into. It is clear that the impetus for the agreement, as with so many pre-marital agreements, came from extended family, in this case H’s father, who required its execution and made it plain that he would “take measures” if it was not signed. Both parties’ evidence was that had they not signed, the marriage would not have taken place. As W’s solicitors of the time said in correspondence, it was “always under the shadow of what [H’s] father was prepared to agree”. I was told that H’s sister had disagreed with H’s father about her own pre-marital agreement, and H’s father refused to see her for years thereafter, such was his anger. 29.The agreement itself contains certificates signed by each party’s solicitor. The certificate of W’s solicitor states: “[W] stated to me, and it appeared to me, that she entered into the said agreement willingly and without any pressure, duress, undue influence or deception on the part of any other person, including [H]”. 30.A letter dated 18 August 2004 from her solicitors stated that “[W] confirmed to us…that she was signing the agreement of her own free will. However, she also made clear that she had felt extremely stressed during the preceding weeks….”, and for that reason the word “stress” had been removed from the solicitor’s certificate. To my mind, this shows the care taken by W’s solicitor to be satisfied of W’s instructions when entering into the agreement.31.I am confident that both H and W were under pressure from H’s father. That is hardly surprising given that H’s father was a man of immense wealth who saw it as his duty to ensure that the family wealth passed through the generations in a dynastic manner. Moreover, coming from a Swiss and B background, where such agreements were commonplace, it is likely that H’s father was more comfortable with the notion of a pre-marital agreement than W, from an English background where, certainly at the time, such agreements were rare indeed. I am equally confident that W felt under stress and was uncomfortable with the process. The intended agreement was a source of tension for both W and H. However, in my judgment, none of the vitiating factors set out in Radmacher apply and I see no reason to discard, or ignore ab initio, the Pre-Marital Agreement:i)I am satisfied that although W and H were under pressure, W was not under undue pressure to enter into it. In almost every Pre or Post Marital Agreement one or other, or both, parties are under a degree of pressure, and emotions may run high. The collision of the excitement engendered by prospective marriage, and the hard realities of negotiating for the breakdown of such a marriage, can be acutely difficult for parties. Tension and disagreement may ensue. If, as here, one side of the family is applying pressure, the difficulties are accentuated. But in the end, each party has to make a choice and unless undue pressure can be demonstrated, the court will ordinarily uphold the agreement. In my judgment, W cannot so demonstrate here. ii)It included clauses that the agreement was entered into “of their own free will without undue influence or duress” and that “they would not be getting married unless they had entered into the agreement”. I have already commented that their solicitors signed certificates to similar effect, and W’s solicitor corresponded to H’s solicitor saying that W was freely entering into the agreement. iii)It was considered, discussed and negotiated over a period measured in months. W had the benefit of lawyers in both England and Switzerland.iv)Immediately after the marriage, and in accordance with the agreement, ‘X’ Street and £1.3m were placed in joint names in accordance with the Pre-Marital Agreement. W thereby benefited from its immediate implementation. 32.I have already indicated that this document has largely been overtaken by events. Nevertheless, of relevance is the exposition within the agreement of why the parties were entering into a Pre-Marital Agreement. It expressly recorded at Clause I that all dynastic property already acquired by H or acquired during the marriage should be free of claims by W save as necessary to implement the agreement, and that each should retain their own separate property. The section “Genesis of the Agreement” at Clause K(i) specifically refers to the past receipt by H of family monies, and the anticipated future receipt of dynastic assets which are intended to be excluded. Self-evidently, the agreement had one eye on the future wealth which was expected to cascade down to H. The Post-Marital Agreement33.There are two main issues:i)Whether W was placed under undue pressure such that it should be disregarded.ii)Further, or alternatively, whether the fact that it was not signed by W, dictates that it should be disregarded.34.The factual background, and circumstances, as I find them, are as follows: i)By March/April 2017 the parties’ plan for the children to be educated in England was settled, and the children were being prepared for the move.ii)There was some dispute about whether W told H on one occasion that if he did not let her and the children go to London, she would divorce him. I suspect this was a product of misunderstanding. Probably W made unguarded comments which were misinterpreted by H. However it came about, I am confident that H was concerned about the possibility of the marriage coming to an end, even if that was not part of W’s thinking at the time.iii)H first raised with W the subject of a Post-Marital Agreement on 24 June 2017 i.e after the children’s move to be educated in England had been agreed. Her opposition is clear from an email to H that very day: “[H], just to confirm in writing what you have repeated to me verbally tonight; that unless I sign the documents you wish, namely a financial post-nup and post divorce custodial rights, you will not allow the children to attend school in the UK this autumn. Terrible we have come to this!”. H told me, and I accept, that the motivation for a Post-Marital Agreement came entirely from him. His father was not involved, beyond saying that he thought H was naïve to let W go to London, and expressing annoyance with W.iv)I am satisfied that H told W she could not go to London without signing a Post-Marital Agreement. In so doing, he threw into doubt the London schooling arrangements which were in place. He also told W that he would only agree to her having a bigger house in London if she signed the agreement. v)W, on or about 5 July 2017, instructed English solicitors, Hughes Fowler Carruthers. She also instructed Swiss lawyers. H likewise instructed lawyers in England and Switzerland. Despite W’s reservations, they entered into negotiations.vi)The first draft of a Post-Marital Agreement was supplied by H’s solicitors on 21 July 2017. vii)On 8 August 2017 the parties and their lawyers attended a without prejudice meeting which lasted the full day. No heads of agreement were signed. I was not made privy to the course of the discussions, although it appears that significant progress was made, and W seemed to be under the impression in her evidence that agreement had been reached on headline numbers. viii)According to W (and a WhatsApp communication with a close friend to whom she unburdened refers to this), on 16 Aug 2017 H told her that if she tried to leave the country without signing the documents, he would call the police. Having heard the parties I am confident that H told W he could go to the police, not that he would do so. This was a misunderstanding during overwrought and emotional conversations. In any event, even though W did not sign the document, she left unimpeded on 30 August 2017 to attend a school induction day with Child A, returned to Switzerland immediately afterwards and, a day or two later flew to London permanently with the children. H saw them off at the airport and did not call the police or attempt to stop them. ix)During this period there were some exchanges by WhatsApp between W and a close friend which, it is said, are corroborative of the pressure W felt under. For example, on 4 August 2017 W said that the pressure was unbearable, on 17 August 2017 she referred to her “head spinning”, on 20 August 2017 she said, “this has been traumatic” and on 28 August 2017 she told her friend of feeling “blackmailed…powerless…cornered and tired and abused”. I regard these communications from W as being secondary, rather than primary material. They are indicative of her state of mind but do not really add to that which is apparent from what I have read, and W’s own oral evidence, that (a) she wanted to leave Switzerland with the children, (b) she felt under real pressure to sign the agreement to achieve her aim, (c) she was anxious, and (d) relations between her and H were low. x)On 21 August 2017 H’s solicitors sent a revised draft agreement. xi)On 22 August 2017 W’s solicitors wrote saying “Thank you for your letter of yesterday’s date and for providing a final version of the agreement, the terms of which are approved”. In my judgment, an agreement was reached at that point, notwithstanding W in evidence being a little reluctant to so concede; she told me that “I did not approve the terms, but if the letter was sent in my name, I stand by it”. The document was comprehensive, clear and detailed. The reasoning from W’s perspective, as the letter stated, was that “[W’s] primary goal is to ensure the children are able to settle in England for the start of the school year” which, I note, she subsequently achieved. xii)On 23 August 2017, H’s solicitors replied acknowledging the agreement which had been reached. xiii)The intention was, as before, for mirror agreements in Switzerland to be drawn up. xiv)Arrangements were made for the agreement to be signed by the parties before a notary in Switzerland on 29 August 2017 at 4pm. That morning W saw a different Swiss lawyer. At about lunchtime W, apparently on the advice of the Swiss lawyer, but not mentioned to H, went to see a GP who wrote a letter (curiously not disclosed until April 2021) in which he certified that W was showing “true mental distress” with a “major anxiety component” and as a result the mental attitude required for calm decision making “is not currently fulfilled”. I do not doubt that W felt anxious and worried at that time; she was about to sign an important document, and wanted to leave forthwith to England. But agreement had been reached on 22 August 2017 (a week before) and I am not persuaded that this medical note undermines the agreement reached one week previously.xv)At about 1.30pm (possibly after she had seen the GP), W told H by email that she would not attend to sign, referring in particular to being worried about signing mirror Swiss documents which she had not yet seen:“I really am unhappy about signing the English documents today without even seeing the Swiss documents…”.xvi)She sent a follow up email saying that she had no intention of renegotiating, and that she planned to sign the document, although she did not in fact do so: “I am not looking to change the English documents, or re-negotiate them, I just want to be able to sign them as a package whenever all the documents are ready, and without the time pressures of having to do so before the children are allowed to begin school”. “I want to reassure you that I have no intention of getting to London to start renegotiating the post nup….There is no tactic…” xvii)W did not sign, although her solicitor signed a certificate confirming that she had given W independent legal advice on the agreement.xviii)It is of note, in my judgment, that nowhere during these events of 29 August 2017 did W complain about the circumstances in which agreement had been reached on 22 August 2017, or the terms thereof. Her concern was not being able to see the Swiss mirror documents before signing. xix)As I have indicated, on 30 August 2017 W flew to London with Child A for his school induction day; H travelled to the airport to see them off just as they were going through the departure gates. They returned that weekend. A day or two later W and the children travelled permanently to England; H accompanied them to the airport.xx)In a sense, W achieved her goal. She was able to leave for London with the children. She was not prevented from doing so by H. And, ultimately, she did not sign the agreement. 35.Although there is no doubt W was placed under pressure by H to sign (as he fairly acknowledged in his oral evidence) I reject the contention that W was placed under undue (my emphasis) pressure, let alone duress, to sign, as was urged upon me by her counsel in closing submissions. Both parties were under pressure for different reasons. It cannot have been an easy process for either. W wanted to move to London and start afresh with the children. From her point of view the Post-Marital Agreement represented a significant potential block; either she signed, or H would not agree to the planned move. H raised the need for a Post-Marital Agreement only after the plans had been laid, and school places secured; W did not want to let the children down. For H, there were concerns about W and the children leaving their home in Switzerland, the impact on their relationship as a couple and the possible impact on the family as a whole. As he saw it, there were other available options in Switzerland, and he was uncomfortable about the move to London; his father’s attitude probably contributed. 36.I readily accept that each party was under pressure. I readily accept that both parties (particularly W) were tense and anxious. I reject the contention (raised in W’s statement but not really pursued in oral evidence) that this was part of a long standing pattern of controlling and domineering behaviour by H which in some way overbore her will, and I reject W’s case that the agreement was reached as a result of undue pressure. The parties were in communication, through their lawyers, about the Post-Marital Agreement for some two months. The document (to which W assented in correspondence) explicitly records at clause 8.8 that each party enters into the agreement “of their own free will without undue influence or duress and without any promise or representation other than as set out in the Agreement, and neither has suffered inequality of bargaining power”. W’s solicitor signed it. At no time did her solicitors say that the agreement was being conducted under undue pressure. I have not seen or heard anything to suggest that she thought at the time that the terms were unfair; rather, her concern seems to have been the lack of mirror Swiss documents. In the end, W elected not to sign, as was her right.37.W says (and it does not seem to be disputed) that thereafter there were continuing discussions (which she describes as negotiations) between the parties in respect of the Post-Marital Agreement. During this period, she was provided with the Swiss mirror documents about which she had previously been exercised. Thus, she says, no agreement can in fact have been reached because otherwise why would they have been in ongoing discussions? I reject that submission:i)The post agreement discussions were privileged, and the parties have not waived privilege to permit me to see them. I have no idea what they contain and whether they do, as W says, represent an ongoing chain of negotiations which did not achieve consensus on a final version of the Post-Marital Agreement.ii)Far from undermining the agreement, in my view the fact that some form of without prejudice discussion took place after the agreement was reached demonstrates vividly that agreement had in fact been reached; otherwise, why attempt to renegotiate it?iii)In any event, the correspondence to which I have referred explicitly confirms that agreement was reached on 22 August 2017. If there was an attempt to re-negotiate, nothing before me suggests that a supplemental agreement, or variation of agreement, was entered into. 38.A more powerful argument for W, in my judgment, is that the agreement was not in fact signed by the parties. Article 1 provides that “This Agreement shall come into force on the date upon which the last of [H] and [W] signed the Agreement”, and the preamble to the Post-Marital Agreement contains the usual notice “Do not sign this agreement unless you intend to be bound by its terms”. 39.Normally, an agreement will take effect as a result of both parties signing. The principle of autonomy, articulated by Mostyn J in BN v MA [2014] EWHC 2450 when emphasising the importance of a party signing (and, I suggest, by corollary, not signing) is relevant. I would not want, however, to lay down an immutable law. Each case is fact specific. It may be, for example, that parties agree in correspondence that agreement has been reached, and signatures are not required. It may be that parties do not sign, but clearly consider themselves bound and act accordingly. But in this case, it seems to me to be unreasonable for an agreement to be formally binding upon W in the absence of her signature when that very same agreement expressly, and in terms, only takes effect upon both parties signing. The purpose of such agreements is to achieve as much certainty as possible, and it strikes me as unfair for W to be strictly held to a document which was carefully drawn up to require, as an express clause of the agreement, both parties’ signatures.40.I am satisfied therefore that it is not a formally arrived at agreement in the Radmacher sense, whereby the presumption is that it should be given effect to unless in the circumstances it would not be fair to hold W to its terms. In other words, I decline to find that it binds W unless she can demonstrate it operates unfairly.41.But nor am I willing simply to discard and ignore it, as W submits. To do so runs contrary to the s25 requirement to take account of all the circumstances of the case. Although not a strict Radmacher agreement, this was an agreement reached by the parties, with the benefit of legal advice, and upon full disclosure. Even though W did not sign it, in my judgment I am entitled to take it into account and attach such weight to it as I think fit. It is one of the factors, to be considered in the mix. The terms agreed in 2017 are relevant, albeit not determinative. 42.I therefore conclude that:i)The Post-Marital Agreement is not vitiated or tainted by undue pressure or duress.ii)The absence of W’s signature, in circumstances where she consciously decided not to sign, takes the agreement outside the Radmacher category of cases.iii)The agreement falls to be considered as one of the factors in this case, but it is not presumptively dispositive as would be the case if it fell into the Radmacher category.Inter vivos subventions by H’s father43.Despite the very handsome provision made by H’s father over the years, that has now ceased entirely since these divorce proceedings. H has been, I find, marginalised by his father from his wealth management role in the family office, where he used to work full-time but now goes only once or twice a week.44.Separately, but linked, H’s father has taken steps in relation to a dynastic trust to remove from H the possibility of benefiting from €23m of dynastic money:i)On 3 June 2014 H’s father settled a trust known as the X Trust, governed by Guernsey law:a)H’s father was the settlor and is the protector. b)H’s father is the named principal beneficiary.c)H is one of the discretionary beneficiaries.d)It is fully discretionary.ii)H has received no distributions or loans from the trust.iii)On or about 21 January 2019, before the separation, H’s father transferred 170,300 shares in a company known as Company 1, which in turn owns about 30% of the shareholding in Company 2, into the trust pursuant to a trust resolution dated 6 September 2018. The value of the introduced shares was about €23m. iv)In January 2020 W’s petition was served. v)On 21 February 2020 the shares were transferred out of the trust and back to H’s father pursuant to an instrument of partial revocation executed by him as settlor. vi)I assume that the original intention was to place monies in the trust by way of potential advance inheritance. The monies never became H’s, and it was never suggested that the monies would have been distributed during H’s father’s lifetime; rather, they were intended to pass down on death. H, I accept, was not party to the discussions at the time, but simply made aware of the transactions after they had taken place. Everything was done by, and at the behest of H’s father who is clearly a domineering and controlling character, and ignored H.vii)By an instrument of amendment, clearly instigated by H’s father, dated 24 April 2020, the trust terms were amended irrevocably to ensure that no monies may be paid or lent to anybody who is not an “eligible beneficiary”. At the risk of speculating, it seems likely that this was designed to prevent trust monies being used for the benefit of W. viii)Currently the trust has assets of no more than about £1,000.45.I am confident (and nobody disputes) that these events (the annual payments ceasing, and the reversal of the funding of the trust) were principally caused by the divorce proceedings brought by W. Contrary to W’s case, this was instigated by H’s father, and is not the product of collusion between H and his father. 46.There is an additional factor which H says makes the prospect of monies once more being gifted to him by his father much less certain. His father has formed a relationship with a woman who is 38 years younger, to whom he has given about £8m. H says that he and his sisters are now barely on speaking terms with his father, and told me about a very difficult conversation between them all in January this year when they told their father they were contemplating taking proceedings against their father and his partner. They had also commissioned a Private Investigator report which angered their father. H and his siblings believe that their father is incapacitous when with his partner, manipulated and controlled by her. They believe that he might jeopardise the family wealth and their future inheritances. Since that conversation, they have now instituted legal proceedings in France and Switzerland; the claim against their father is akin to a Court of Protection action. Having heard the evidence, I accept that there is a major family breakdown underway between H, his sisters and his father. H’s father has ceased any support for H’s sisters as well as for H. H told me, and I accept, that his father sees them as the enemy. 47.Given the current disputes within the family, I do not find that in the foreseeable future H’s father is likely to resurrect the previous level of payments. The ongoing Swiss litigation suggests to me that any such payments are some way off, and, if made, could well be at a lower level than before. I doubt whether H’s father will, as W suggests, immediately replace in the dynastic trust the sums previously removed, or anything like it. I am not satisfied that I can or should take this prospective resource (i.e ongoing support provided by H’s father) into account in any meaningful way, save that I doubt he would want to see his son destitute; in other words, I view the father, in the background, as a safety net in the event of calamity rather than in the foreground as a foreseeable ongoing resource. I remind myself that this is entirely in the gift of H’s father. It is not for me to try and encourage him to restore the inter vivos payments; to do so would be to trespass on his autonomy. I make it clear, however, that even had I concluded that monies of up to c£600,000pa will shortly be made over to H once again, my conclusions on the appropriate order would be the same.Prospective inheritance 48.H’s father is 89 years old and in good health. His life expectancy according to At A Glance is 4.5 years, although of course he may well live appreciably longer. In cross examination, H indicated that his father is worth not less than €400m, all of which appears to be in his name rather than held via trust arrangements. The generational approach of the family is to preserve wealth dynastically, not to squander it, and H’s father has made no direct threat to disinherit H.49.W submits that H will likely receive by inheritance vast sums from his father. H in his Form E said that “I anticipate I will benefit at some point in the future (whether outright or as a beneficiary of trusts, or otherwise) from his estate or inter vivos gifts. I do not know the exact amount by which I may benefit although I anticipate it will be substantial wealth in excess of €100m. There is an expectation I will preserve this wealth for future generations just as my father and ancestors have done. If my father dies in Switzerland then forced heirship provisions will apply. However my father is not Swiss and he may well move to another country before his death”. Unlike in Alireza there is some evidence here that H’s father may seek to disestablish himself from forced heirship. The current family dispute, and his severance of funds for any of his children, no doubt causes them disquiet. The general proposition of law, per