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

Section 1(1)(c) of the Act entitles a child of a person who has died domiciled in England and Wales to:

“apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.”

It is not in dispute that the Deceased died domiciled in England and Wales and that David is a child of the Deceased. He is therefore eligible to bring a claim under the Act.

The meaning of the phrase “reasonable financial provision” is explained by section 1(2) of the Act. In the case of a child of the deceased, such as David, it means:

“such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

Important guidance on the term “maintenance” was provided by the Supreme Court in Ilott v The Blue Cross & Others [2017] UKSC 17; [2018] AC 545. At paragraphs [14] and [15] of his judgment (with which all the other members of the court agreed) Lord Hughes JSC stated as follows:

“14.

The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living…

15.

The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.”

In the same passage Lord Hughes quoted with approval what had been said by Browne-Wilkinson J in In re Dennis, decd [1981] 2 All ER 140 , 145–146:

“The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry, decd … [1980] Ch 461 . In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in In re Christie, decd … [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word ‘maintenance’ is not as wide as that. The court has, up until 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 a 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 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.”

Section 2(1) of the Act provides as follows:

“Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders…”

The section then proceeds to set out a menu of potential orders available to the court in such circumstances, which include an order for the payment of a lump sum out of the estate (section 2(1)(b)) and an order for the transfer to the applicant of property comprised in the estate (section 2(1)(c)). Section 2(4) provides a wide power enabling the court to include consequential and supplemental provisions within its order:

“An order under this section may contain such consequential and supplemental provisions as the court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between one beneficiary of the estate of the deceased and another and may, in particular, but without prejudice to the generality of this subsection—

(a)

order any person who holds any property which forms part of the net estate of the deceased to make such payment or transfer such property as may be specified in the order;

(b)

vary the disposition of the deceased’s estate effected by the will or the law relating to intestacy, or by both the will and the law relating to intestacy, in such manner as the court thinks fair and reasonable having regard to the provisions of the order and all the circumstances of the case;

(c)

confer on the trustees of any property which is the subject of an order under this section such powers as appear to the court to be necessary or expedient.”

Section 3(5) of the Act requires the court to take into account the facts as they are known at the date of the hearing.

As the Supreme Court indicated in Ilott v The Blue Cross (supra), claims under the Act are often considered by reference to two questions:

In determining these questions (whether consecutively or together) I am required to have regard to the wide list of factors set out in section 3(1) of the Act. These are as follows:

“(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 for an order 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.”

For Susan, Mr Poole drew my attention to a number of other observations of the Supreme Court in Ilott v The Blue Cross (supra), namely:

I also asked Mr Poole for assistance on the approach that the court should take when assessing a claimant’s financial needs and resources in respect of the claimant’s liability for his legal costs incurred within these proceedings in the light of the recent decision of the Supreme Court in the case of Hirachand v Hirachand [2024] UKSC 43; [2025] AC 559. He referred me to the decision of Mr James Pickering KC sitting as a Deputy High Court Judge in the Chancery Division in Jassal v Shah [2024] EWHC 2214 (Ch), a decision which held that such costs were governed by the Civil Procedure Rules 1998, that they fell to be dealt with under that regime, and could not be included in any substantive award under the Act. This decision was approved by the Supreme Court in Hirachand (at para [60]). In the light of this decision I cannot take into account, when considering David’s financial needs and resources, his potential liability to his solicitors for the costs of these proceedings.

I explored with Mr Poole whether this principle also applied to Susan’s liability for her costs of these proceedings (which have been paid through a loan arrangement between Susan and her US attorney, Mr Giancarlo Irribarren). Susan’s position is not on all fours with that of David. She is not asking for additional financial provision from the estate, and so there would be no question of me making an order under the Act in order to make provision for her costs. Nonetheless, I consider that it would be wholly wrong for legal costs incurred within the proceedings to be excluded from consideration when assessing the financial needs and resources of an applicant under section 3(1)(a) of the Act, but for equivalent costs to taken into account when assessing the financial needs and resources of a beneficiary of the estate under section 3(1)(c) of the Act. Mr Poole, in my view quite correctly, did not seek to argue otherwise and I have therefore considered the financial needs and resources of all parties without reference to their liabilities for the costs of these proceedings.