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

Susan

Evidence on behalf of Susan was originally filed by Mr Ellis. This statement contained a significant amount of hearsay and argument and a redacted version (removing much of this contentious material) has been filed. Susan herself has filed three statements, the first essentially confirming Mr Ellis’ statement and two subsequent statements setting out her position in more detail. She gave oral evidence via video-link.

Susan suffers from a complex set of serious medical conditions. She is bed-ridden and unable to walk. She has a colostomy, a nephrostomy (a tube to drain her kidneys) and a hole in her neck following a tracheostomy that requires constant attention. She also has a hip infection which is supressed by daily antibiotics. Her medical notes make reference to recurrent C. diff. colitis, stage 4 chronic kidney failure, breast pain and to her suffering from a major depressive disorder. She is on a large number of different medications. Mr Ellis’s evidence was that she has been close to death on a number of occasions.

Susan is a long-term resident at a residential placement in the USA, described by Mr Ellis as a post-acute field nursing facility. Her placement there is funded through the public Medicare scheme, and she shares her room there with another resident. In addition, she receives $1,416 in state benefits per month (approx.£1,050) which she uses to reimburse expenses met on her behalf by relatives and to pay for storage of her personal belongings. As of May 2025 she had savings of about $18,000 (£13,350).

Her evidence is that she is deeply unhappy and depressed as a result of her placement and surroundings. Indeed, in her evidence she calls the placement “unbearable”. She describes the food in her placement as uneatable and is having food delivered at a cost of around $1,000 per month. Her evidence on who pays for this food was confusing. In her second witness statement and oral evidence she describes herself as reimbursing these costs, but in her third witness statement she stated that these costs were being met from funds belonging to her second husband Mr Cohn whose affairs are being managed by his son (and Susan’s step-son) Matt Cohn.

Susan’s current legal fees are being met in the first instance by her US attorney, Giancarlo Irribarren, and she has agreed to repay these once she receives her inheritance from her mother’s estate. I do not know the level of those costs, although I have no doubt that they are significant. For the reasons already discussed I have not taken them into account in my determination of her financial needs and resources.

During their marriage Susan and Mr Cohn kept their finances separate, although they lived in a property that belonged to Mr Cohn alone which was recently sold for a sum in the region of $1.8M. Mr Cohn now suffers from dementia and his assets (including the proceeds of sale of his property) are now held within a trust structure. During Mr Cohn’s lifetime the income and capital of the trust are to be applied for his benefit. After his death any part of the trust capital not yet distributed is to be held on a special needs trust for Susan’s benefit. The trust provides for payments from income and capital to be made for Susan’s “special needs” which are defined as:

“the requisites for maintaining [Susan’s] health, support, maintenance and education, when, in the discretion of the trustee, such requisites are not being provided by any public agency, office of department of the State of California, or of any other state, or of the United States.”

The expression includes, but is not limited to:

“medical and dental expenses; clothing and equipment; programs of training, recreation, education and training; and essential dietary needs…”

The trust also provides that it is the settlor’s intention that:

“no part of the interest earned by or the corpus of trust created herein shall be used to supplant or replace public assistance benefits of any county state, federal or governmental agency that has a legal responsibility to serve persons with disabilities.”

Thus, although Susan is a discretionary object of the trust after Mr Cohn’s death, she has no entitlement to any assistance from the trust. The trust is effectively designed to preserve any entitlement that she may have to funding from public sources, and to supplement rather than replace such benefits.

I found the evidence in relation to this trust to be somewhat opaque. The trust describes itself as having been amended and restated by Mr Cohn in February 2024, although I understand that he has been suffering from dementia for some while. Although both Susan and Mr Ellis were clear that no significant financial support for Susan was likely to be forthcoming from this trust and referenced discussions with Matt Cohn (who along with Mr Cohn is a trustee of the trust) I did not gain any real understanding as to why Mr Cohn was making no financial provision whatsoever for his wife, notwithstanding the clear needs that she currently has.

I was not greatly impressed by Susan’s oral evidence. I fully take into account the great difficulties that she faced in giving evidence, doing so via video-link from her bed in her placement, at what would have been an early hour in the morning in California. I also recognise that the reality of being cross-examined in person by her siblings meant that at times her evidence took on the air of a family argument.

Nonetheless, I was struck by Susan’s limited recall of a large number of matters and on a number of occasions she was clearly turning to her US lawyer (who was in the room to assist Susan with the various bundles) for assistance with answers to the questions that were asked of her, something that I had to repeatedly ask her not to do. She was also unable to explain why her third witness statement which was signed less than a month ago had (wrongly) stated that her food delivery costs were being met by Mr Cohn.

On some matters (such as questions about correspondence that she had had with David in 2014 and 2015 about their mother’s estate), I was left with the impression that her lack of recollection was a matter of convenience. In respect of other issues, even where she had some degree of recollection her evidence lacked any detail. For example, although she was clear in her oral evidence that their mother did not like David, she did not provide any credible explanation as to why this dislike had arisen; nor could she explain why (given this apparent dislike) Mrs Isaacs had treated David equally with his sisters in her 2002 will.

However, the issue that struck me most about the evidence of both Susan and Mr Ellis was the lack of any evidence or proposals as to how Susan’s inheritance from her mother could be applied to make practical improvements to her situation. Susan’s evidence is that she finds her current placement to be unbearable, and the point is made that it is over an hour’s drive for her son to visit her there. However, Mr Ellis in his evidence indicated that it would be possible to move Susan to an equivalent facility closer to where he lives. My understanding is that Susan’s care and medical costs are currently met through the government Medicare scheme, and this would continue to be the case if she moved to an equivalent facility closer to Mr Ellis.

However, I understand Susan’s real complaint to be that she does not want to be in a publicly funded placement at all and that her unhappiness in current placement would be likely to be replicated if she were moved to a similar facility elsewhere. In her second witness statement Susan suggested that her inheritance from her mother could pay for improvements to her son’s property and the costs of a carer. In his oral evidence Mr Ellis seemed more taken with the idea of purchasing a suitable property for his mother where she could receive care than with altering his own home to accommodate her. However, it was clear from their cross-examination that these were essentially general aspirations rather than costed proposals. Neither Susan nor Mr Ellis appears to have explored either the options that would actually be available to her or the costs of those options in any detail. The only evidence that I have in this regard is a “LifeCare Plan” report dated 2 July 2024 which was exhibited to Susan’s second statement. That report suggests that in order to comply with State nursing regulations, Susan, if provided with care in a home environment, would need to be cared for by a registered nurse, not just a home health aide. The annual cost of a package to provide this care is put at $808,554pa (approx. £650,000). As an alternative, the report suggests the cost of Susan receiving care in a sub-acute facility would be $473,040pa (approx. £350,000).

Given that Susan’s inheritance from her mother will, even if I were to dismiss this claim entirely, be unlikely to exceed £300,000 it seems clear to me that the suggestion that Susan could use her inheritance to fund a move to a home placement or another facility is hopelessly unrealistic. Mr Poole makes the point that any inheritance could be used to enable Susan to enter a sub-acute care facility where she could receive appropriate care, for a limited time to enable her to recuperate. On the figures that I have, £300,000 would enable her to live in such a facility for around 10 months. Mr Poole described every penny as being important to his client.