No: FD22F00062 - [2025] EWHC 1951 (Fam)

This case is far from straightforward. I am faced with three siblings, all of whom are in their seventies, and all of whom have clear financial needs. None are now capable of earning a living, and two of them, David and Susan, have significant healthcare needs. On the other side of the equation there is a finite and diminishing pot of money that is plainly insufficient to meet all of their needs in full.

Turning first to the terms of the Deceased’s will, I do not accept Susan’s evidence that the Deceased had always disliked David. Their relationship was sufficiently strong in 2002 for David to be included in her will and although by 2011, her condition appears to have deteriorated to the point that she was not herself able to make the decision that David should move back into the Property, she was aware that he had done so and appears to have been grateful for the assistance that he and Ruth provided to her in her final years. David told of his mother describing him as a “good boy” during this period and I felt this gave a genuine insight into their relationship during this period.

On the balance of probabilities, I consider that the Deceased’s decision to exclude David from her 2006 will was driven by her concerns about the state of his marriage. I cannot say whether this was because she did not approve of David’s delay in seeking a divorce from his wife or because of concern that any inheritance received by David would be at risk in financial remedy proceedings, but I do not consider that this really matters. In this regard I do not accept Mr Poole’s submission that David’s inheritance would not have been at risk on a divorce. Given David’s limited means, I consider that any funds that he inherited from his mother would have been liable to be taken into account to meet the financial needs of his wife and child in financial remedy proceedings whether or not they represented matrimonial property. It is harder to say precisely why the Deceased did not change her will again after David’s divorce had been finalised in 2008, and I am not in any position to determine when she would have lost testamentary capacity. Nonetheless, I am satisfied that certainly by 2011 the relationship between David and the Deceased was a friendly one, albeit one that must be seen in the light of the Deceased’s diminished capacity.

I am also satisfied that David is in genuine financial need and requires provision for his maintenance. Since 2011 he has been dependent upon the Deceased (and subsequently her estate) for his accommodation. I do not accept Mr Poole’s submission that David is not in financial need, because his needs (and in particular his requirement for accommodation) are being met (or will be met) by Ruth. I accept that it is highly probable that Ruth and David will continue to pool their financial resources for the foreseeable future, whether they continue to live at the Property or elsewhere. That said, they are siblings rather than a married couple and David has no legal claim on any asset belonging to Ruth. There may be circumstances in the future when, for whatever reason, it would no longer be possible or appropriate for Ruth to continue to use her own limited resources to accommodate both herself and David and I consider that David has demonstrated a need for financial provision in his own name to safeguard his right to accommodation. Further, I am not satisfied that Ruth’s share of the estate on its own would suffice to provide suitable accommodation for both her and David.

Whilst David has not demonstrated an immediate income shortfall, and is currently spending a significant part of an otherwise modest income on items that are not essential to his day-to-day welfare, I make the following observations:

This is not a case where the claimant is, to quote Lord Hughes in Ilott at [20] “well capable of earning a living” and having regard to David’s financial needs and resources, his state of health and my findings as to the circumstances surrounding his exclusion from the 2006 will, I consider that the will failed to make reasonable financial provision for him and that I should now make reasonable financial provision for him within this claim.

What form then should that provision take? Although Lord Hughes identified in Ilott (at [15]) that where housing is provided by way of maintenance, it is more likely to be provided by a life interest rather than a capital, I do not consider this to be an appropriate course of action here. The estate is small and for a life interest to provide meaningful support, it would have to extend over a significant part of the estate. The parties are siblings of a similar age and the grant of a life interest in favour of David could effectively shut Ruth and Susan out of a significant portion of capital for the rest of their lives. Furthermore, the family relationships here are such that a professional trustee would be required which would have a further cost that the estate could ill afford.

I fully recognise that in making provision for David, I will, of necessity be taking away funds that would otherwise be available to Ruth and Susan, and I must therefore consider the impact upon them of any provision that I make for David. So far as Ruth is concerned, although the immediate effect of my order will be to reduce the share of the estate that she receives, if she and David continue to live together, it will enhance the value of the joint assets available to them. From Susan’s perspective though, there is only downside. I have therefore considered carefully the impact upon Susan of making provision for David. The difficulty here is that I have very limited evidence as to how the receipt of any inheritance could be used to positively improve Susan’s life. Her care and medical needs are being met from public funds, and her limited additional costs are fully met from her income.

The real issue for Susan is that she does not want to be in either her current placement or an equivalent facility at all. However, that is not something that the resolution of this claim can achieve for her as it is clear from the evidence of care costs that a move to home care (either to a separate property purchased for this purpose or to Mr Ellis’s home) is simply unaffordable. The only alternative option potentially available to her would be to move to a sub-acute facility where she could receive private care for a limited period. I am told that this would enable her to recuperate, although I do not have any real evidence as to the difference between the care that she would receive in such a facility and that currently enjoyed, although I recognise that this may enable her to enjoy a private room and receive better food. The evidence submitted shows that the annual cost of such a facility would be around £350,000 or approximately £29,000 per month. Thus an inheritance of £300,000 would enable her to move to such a facility for around 10 months. For every £30,000 that her inheritance is reduced by David’s claim then her stay in such a facility will be shortened by one month.