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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ilott v Mitson & Ors  EWCA Civ 346 (31 March 2011)
Cite as:  WTLR 779,  2 FCR 1,  EWCA Civ 346
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION
MRS JUSTICE ELEANOR KING
Lower Court No: FDF00810
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LADY JUSTICE BLACK
| Heather Ilott
|- and -
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Giles Harrap (instructed by Wilsons Solicitors LLP) for the 3rd, 4th and 5th Respondents
Hearing dates: 8 February 2011
Crown Copyright ©
Sir Nicholas Wall P :
The issues raised by the appeal .
1. Application for financial provision from deceased's estate
(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons -
(c) a child of the deceased;
that person may apply for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will………is not such as to make reasonable financial provision for the applicant…….
(2) In this Act "reasonable financial provision" –
(b) ……. means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance……
Matters to which the court is to have regard in exercising powers under Section 2
(1) Where an application is made for an order under section 2 of this Act, the court shall, in determining whether 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 such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—
(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.
"So these matters [the statutory criteria] have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the plaintiff's maintenance and, secondly, in determining the extent to which the court should exercise its powers under the Act if, but only if, it is satisfied that reasonable provision for the plaintiff's maintenance has not been made.' "
"It seems to me, however, that in regarding the circumstances and in applying the guide lines set out in section 3, it always has to be borne in mind that the Act, so far as it relates to applicants other than spouses, is an Act whose purpose is limited to the provision of reasonable maintenance. It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court's powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant's maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased's dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased's position. This may seem almost a truism, but I mention it because some of counsel's submissions for the plaintiff, although he did not put it so in terms, seemed to me to be leading to the conclusion that because the deceased's intestacy and the inflation of property values had produced something of a windfall, which could reasonably have been disposed of by the deceased in favour of his son if he had thought about it, therefore the court ought to step in and divert it to where it would be most useful and appreciated.
That is not the purpose of this legislation at all. It cannot be enough to say, 'Here is a son of the deceased, he is in necessitous circumstances, there is property of the deceased which could be made available to assist him but which is not available if the deceased's dispositions stand; therefore those dispositions do not make reasonable provision for the applicant'. There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made. This was the approach under the former legislation and it is reflected in the passage from the judgment of Buckley J in Re Ducksbury (deceased) ( 2 All ER 374 at 380,  1 WLR 1226 at 1233) to which I have already referred, where, towards the end of his judgment, he says:
… it is not for me to try to effect the sort of testamentary dispositions which I think that a testator should have made or would have made had his mind not been affected, as I think it was, by his matrimonial disputes with his first wife. It is not for me to say what he ought to have done if he had been generously disposed towards the plaintiff. I have to consider what it is reasonable in the circumstances of this case to order that she should receive, having first of all satisfied myself that the testator had failed to make reasonable provision for her. He has in fact made no provision for her, and for the reasons that I have indicated I think that he was under a moral obligation to make some provision for her. I am, therefore, satisfied that he has failed to make a reasonable provision for her."
"In my judgment the plaintiff's claim substantially rests on two limbs only, that is to say (a) that he is a son of the deceased with whom it might be thought that there would be a bond of natural affection and (b) that although he is in employment and capable of maintaining himself his circumstances leave him little or no margin for expenditure on anything other than the necessities of life. I have every sympathy for any plaintiff who, on relatively slender earnings, has to meet a steadily rising cost of living, but, as I have said, I cannot regard the Act as one which entitles the court to interfere with a deceased person's dispositions simply because a qualified plaintiff feels in need of financial assistance. I cannot in this case find any circumstances which satisfy me that it is an unreasonable result of the intestacy laws that no provision is made for the plaintiff's maintenance and in my judgment the application must fail."
"I reject the second of those criticisms at once. Oliver J nowhere said that a moral obligation was a prerequisite of an application under s 1(1)(c); nor did he mean any such thing. It is true that he said a moral obligation was required, but in my view that was on the facts of this particular case, because he found nothing else sufficient to produce unreasonableness "
"I agree. The questions to be answered by Oliver J. were these: first of all, did the statutory provisions relating to intestacy operate in this particular case so as not to make reasonable financial provision for the plaintiff son; secondly, if they did so operate - that is to say, if there was no reasonable provision - should the court exercise in its discretion its power to order some provision to be made; and thirdly, if so, in what manner should that provision be ordered?
Since the plaintiff received nothing from the estate on his father's death intestate, in effect the first question becomes this: Was it reasonable in all the circumstances that the plaintiff should receive no provision from his father's estate?
The judge reserved his judgment. The result was a meticulous and painstaking examination of all the relevant facts of the case, and a conclusion that in the circumstances the contentions on behalf of the plaintiff must fail; that it was reasonable for this plaintiff to receive nothing and for the mother, who is the widow defendant, to receive whatever was left after all this litigation had been paid for.
Now whatever the rights and wrongs of this matter may be, it seems to me that this was par excellence a case in which the decision of the judge should stand as to what is reasonable and what is not reasonable, unless it is clearly shown that he has gone wrong on a point of law, or in some way has misapplied the facts of the case to the law. Particularly in the case of small estates such as this one, appeals like this to this court are strongly to be discouraged. It has been said before, in particular in the passage to which our attention has been drawn, by Fenton Atkinson LJ in Re Gregory (Deceased), Gregory v Goodenough  1 WLR 1455, 1462."
"I do not, for my part, extract from the decisions in Re Coventry and Re Jennings, the degree of support for the defendants' case that Mr Crawford has submitted. It is clear to me that the 1975 Act does not require, in an application under s 1(1)(c), that an adult child (whether son or daughter) has in all cases to show moral obligation or other special circumstance. But on facts similar to those in Re Coventry and even more so with the comparatively affluent applicant in Re Jennings, if the facts disclose that the adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as a moral obligation. The judge expressly found that there was no moral obligation or responsibility to be found in this case."
"The decision in Re Coventry was considered in Re Jennings, deceased,  Ch 286, where Nourse LJ concluded that in the case of an application by an adult son of the deceased who was fit and able to work, and in work, some 'special circumstance, typically a moral obligation' was required. The application 'failed because the deceased owed him no moral or other obligation and no other special circumstance was shown'. The use of the word 'typically' is revealing. Nourse LJ did not say 'invariably' or 'necessarily'. If he had done so he would have been using language which does not appear among the statutory criteria. Accordingly, while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence."
"That approach was upheld by this court but, as has been pointed out in both the judgments of Butler-Sloss and Judge LJJ, the argument that Oliver J had made a moral obligation on the deceased a prerequisite of a successful application was rejected. Oliver J did hold that in the circumstances which existed in Re Coventry a factor in addition to the plaintiff's blood relationship and necessitous state was needed for the scales to tip in his favour. The reference in the passage I have quoted to the need for a moral claim is not the same as a finding that the scales could only tip in the plaintiff's favour if it could be shown that the deceased was under a moral obligation to provide for the plaintiff. Mr Grant Crawford's argument that an adult child cannot make a successful application, unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the court to decide that the scales fall in favour of the conclusion that there has been a failure to make reasonable financial provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry, or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court's conclusion that there has been a failure to make reasonable financial provision but the use of the phrase 'special circumstance' does not advance the argument. The word 'special' means no more than what is needed to overcome the factors in the opposite scale.
Re Coventry, besides providing a vivid illustration of the weight, as a factor in one scale, of the ability of an applicant who is capable of earning and does earn his or her living, is authority, particularly in the Court of Appeal decision, that there is no single essential factor for the success or failure of an application under the Act. Ewbank J made this clear in Re Debenham (Deceased)  1 FLR 404 when he said at 410C:
"It is also said on behalf of the charities that before I can make an order I will have to find that there were special circumstances outside the range of circumstances listed in s 3 of the Act. It is said that this can be derived from the case of Re Coventry (above) but I do not read the case of Coventry in that light. That was relating to a grown-up man who was capable of working, and a judge, with whom the Court of Appeal agreed, said that if a grown-up man capable of working was going to make an application under the Act he would look for special circumstances. So one would. But that is not a question of law; it is a question of applying common-sense principles.'
"Mr Norris QC for the appellant submitted that the judge fell into error in his approach to the claim. He concentrated on the issue of moral obligation and did not consider the criteria under s 3(1) as a whole. Mr Norris submitted that the most significant factor for the court to take into account was the applicant's needs and resources and the judge failed, despite the evidence before him, to make any findings at all about the financial position of the appellant: s 3(1)(a). An adult child was in no special position and this appellant was, at the time of death, dependent upon the deceased. At the time of the hearing her financial position was precarious. The judge, having found that a moral obligation existed, was in error in concluding that it had been discharged.
Mr Herbert QC submitted that the judge had to make a value judgment and the appellate court should not interfere unless he was plainly wrong. A court should be reluctant to disturb a will. An adult child capable of earning a living had a big hurdle to overcome unless moral obligation or special circumstances could be established. He accepted that the judge did not make findings about the appellant's financial position but submitted that on the facts of this case it was not necessary to do so. In any event it must be inferred that the judge considered it was a case where the appellant had needs in order for him to go on and consider the moral obligation. The appellant had never provided evidence nor sought to ask for details of the portfolio shares inherited by the deceased from his wife and there was no evidence about it. At the time of the trial the appellant had bought a business and her present financial position was adequate. He submitted that the judge was entitled to come to the conclusion that the contribution made by the deceased during his lifetime together with the conduct of the appellant discharged any obligation he might have towards her."
"I have drawn attention to the passages above from earlier decisions of this court in order to show the way in which the words 'moral obligation' and 'special circumstance' have been applied in the judgments. Subsection (1)(d) refers to 'any obligations and responsibilities'. Plainly those obligations and responsibilities extend beyond legal obligations and that is why, in my view, the word 'moral' has been used to underline and explain that the deceased's obligations and responsibilities are not to be narrowly construed as legal obligations but to be taken into account in a broad sense of obligation and responsibility. Any other meaning of 'moral' (such as the distinction between right and wrong, see Concise Oxford Dictionary) would more appropriately be considered under (g). There may have been some confusion in the minds of trial judges that the appellate court was placing a gloss upon the words of the section, and putting some special emphasis upon the requirements of subs (1)(d) so as to elevate moral obligation or special circumstance to some threshold requirement. From the judgments of this court in Re Coventry to the present day, it should be clear that no gloss has been put upon subs (1)(d). An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)–(g) and assess the relevance and the weight to be given to each factor in the list. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator's dispositions. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act.
Applying these propositions to the present appeal, in my judgment the judge did fall into error by focusing too much upon the requirement for an adult child to show a moral obligation. At the stage that he decided that the moral obligation had been discharged, he failed to put the other criteria, particularly needs and resources of the appellant, into the balancing exercise. In the light of the way in which the case was presented to him, I have some sympathy with the judge's approach to his decision. We were also told that it was an extempore judgment on the last day of his sitting in Manchester. Nonetheless his approach to the value judgment he had to make was flawed and his decision cannot stand."
"The court has, up to 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 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 as 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."
"Mr Herbert QC submitted that it was wrong to believe that the judge had not considered the needs of the appellant. This was a case where the appellant was an adult child capable of working. In those circumstances it was not reasonable to provide for maintenance absent a special circumstance such as a moral obligation. I accept that in certain circumstances the ability of an applicant to earn may mean that an application made under s 1 will fail unless special circumstances are shown. However, as stated by Oliver J in the Coventry case  Ch 474 the case should not be approached upon a preconceived notion that there was a heavy burden on applicants of full age. In these days where persons without qualifications find it difficult to obtain employment, the court should not approach the question of what is the appropriate maintenance with any preconceived view. All the circumstances of the applicant must be considered."
The argument for the charities
"In my judgment, all of the above factors have produced an unreasonable result (emphasis supplied) in that no provision at all was made for (the appellant) in her mother's will in circumstances where (the appellant) is in some financial need. However, I also accept that (the appellant) has not had any expectancy of any provision for herself. (The appellant and her husband) have managed their life over many years without any expectancy that (the appellant) would receive anything. That does not mean that the result is a reasonable one (emphasis again supplied) in the straightened financial circumstances of the family. But it does mean, in my judgment, that any provision now must be limited."
"If I am wrong in concluding that (the district judge) erred in law and he did in fact ask himself the correct question, nevertheless in my judgment he in any event erred in his balancing of the section 3 factors with the consequence that he was plainly wrong in concluding that the deceased had failed to make reasonable provision for his daughter."
"Despite looking at each section 3 factor separately, the learned judge failed thereafter to stand back and assess the impact of them when taken together. Had he done so he would, in my judgment, have concluded that, far from any of the section 3 factors tipping the balance in favour of the daughter's claim, the court was left with a filial relationship and necessitous circumstances, with nothing more of sufficient cogency to drive a court to conclude that, in all the circumstances of the case, no provision for the daughter was unreasonable provision."
"A daughter is entitled (indeed would be expected) to make a life with a partner of her choice and have a family of her own. She would reasonably hope that a parent would accept such a choice, and not blame her for it."
"I accept that such work would be likely to be poorly paid, and that she is likely to continue to require some subsidies for her basic living expanses."
The judge acting in an appellate capacity
Lady Justice Arden
"In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s 3 of the Inheritance (Provision for Family and Dependants) Act 1975 requires the court to have regard. Some factors may be neutral but many will go into the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. In Re Coventry ... there was placed in the scales a factor of major weight against the proposition that there had been a failure to make reasonable financial provision and that was that the plaintiff was capable of earning, and was earning, his living. This meant that for the scales to be turned and for the court to find that there had been a failure to make reasonable financial provision for the plaintiff a factor of great weight would be needed in the opposite scale. Typically, the weightiest factor in favour of an applicant seeking to show that there has been a failure to make reasonable financial provision for him or her, is present when there is found to have been a moral obligation on the deceased to make financial provision for the applicant. But that factor was held by Oliver J not to be present in Re Coventry . . . [The] argument that an adult child cannot make a successful application, unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the court to decide that the scales fall in favour of the conclusion that there has been a failure to make reasonable provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry, or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court's conclusion that there has been a failure to make reasonable financial provision but the use of the phrase "special circumstance" does not advance the argument. The word "special" means no more than what is needed to overcome the factors in the opposite scale."
"An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)–(g) and assess the relevance and the weight to be given to each factor in the list. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator's dispositions. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act. .. " (emphasis added and see the passage from re Hancock cited above)"
"2.79 It was formerly thought that a claim by an adult child would be subject to an additional threshold of "special circumstances" or a "moral claim". In Re Hancock, the Court of Appeal held that this was incorrect, although it may be difficult for a child who is able to earn their own living to show that reasonable financial provision has not been made for them "without some special circumstance such as a moral obligation".
2.80 It has subsequently been held that the word "moral" is intended only to emphasise that the obligations and responsibilities to which the court must have regard under section 3(1)(d) of the 1975 Act need not be purely legal." (footnotes omitted)
Lady Justice Black
The question that the District Judge asked himself
"64. I am satisfied therefore that the rejection by the mother of her only child at the age of 17, and which she then maintained for the rest of her life, was unreasonable, and that has led to Mrs Jackson unreasonably excluding her daughter from any financial provision in her will, despite her daughter's obviously constrained and needy financial circumstances and her daughter's wish for and attempts at a reconciliation. The reasons given by Mrs Jackson for excluding her daughter are set out in her letters written in 1984 and 2002. Both contain a number of factual inaccuracies in the attempt to explain the decision, which adds to and supports the unfairness."
If the District Judge had left it at that, and concluded on that basis that the answer to the first question was "No", he would undoubtedly have been in error. Where I differ from Eleanor King J is that in my view the District Judge then moved on both to set out and to answer the correct question.
"Subject to the court's powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not just that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant's maintenance." [495E]
The District Judge's answer
"the mere fact that the plaintiff finds himself in necessitous circumstances cannot, in my judgment, by itself render it unreasonable that no provision has, in the events which have happened, been made for his maintenance out of the deceased's estate."
"As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator's dispositions. "
- The size and nature of the estate (section 3(1)(e)) will always be material.
- Consideration will always have to be given to the situation of any other beneficiary of the estate (section 3(1)(c)) because the proceedings would not exist if there were not at least one such beneficiary. It was said in Cameron v Treasury Solicitor that the devolution of the estate to the Crown could not enhance the applicant's claim and was a neutral factor, not relevant to the criteria to be taken into account under section 3, but I do confess to some difficulty with that approach because, if the presence of a needy beneficiary has the potential to weaken the applicant's claim (as it must have where the estate is limited), so must the absence of any beneficiary in the conventional sort of need have the potential to assist the applicant. I suspect that it may be an approach which should be seen in the light of the facts of that particular case in which the applicant had the fundamental difficulty that she had been divorced from the deceased 19 years before he died and a clean break order had been made in ancillary relief proceedings; one can see why, therefore, the fact that the estate devolved to the Crown as bona vacantia was not of assistance to her in establishing her claim.
- Section 3(1)(g), drafted as it is in very broad terms, may well draw in other factors depending on the facts of the individual case, amongst them potentially the views of the deceased. Goff LJ said in Re Coventry [488H] that a view expressed by a deceased person that he wishes a particular person to benefit will generally be of little significance, because the question is not subjective but objective, but that an express reason for rejecting the applicant is a different matter and may be very relevant to the problem. Butler-Sloss LJ said in Re Hancock (supra):
"A good reason to exclude a member of the family has to be a relevant consideration. However, in my view, the recognition by a testator of the status of members of his family and his goodwill towards them and in this case towards the plaintiff are factors which it is proper to take into account under s 3(1)(g) and it is for the court to give such weight to those factors as may in the individual case be appropriate." [352E]
"on an application by an adult son of the deceased who is able to earn, and earns, his own living there must be some special circumstance, typically a moral obligation of the deceased towards him, before the first question can be determined in his favour" [295F]
"the principle is not to be stated in such seemingly absolute terms. There is no invariable prerequisite that a moral obligation or some other special circumstances must be shown….." [710D]
"in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)((a)-(g) and assess the relevance and weight to be given to each factor in the list." Espinosa v Bourke [755F]
"In every case, inevitably it is going to be a matter of degree….
….In the end, to my mind Oliver J struck a balance and reached a conclusion which I find it impossible to fault…" Re Coventry [493D and G]
"A judge making a decision at the first stage, although he does not exercise a discretion, does make a value judgment based upon balancing the factors set out in s 3 of the 1975 Act." Re Hancock [353H]
"In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s 3 of the 1975 Act requires the court to have regard. Some factors may be neutral but many will go in the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant." ibid [357A]
"Section 3(1) of the 1975 Act sets out the matters to which the court has to have regard.
It is a complete list……
The task of the court is that required by s 3 of the Act. It is therefore incumbent upon the court to consider all the matters referred to in subsection (1) of that section…." Espinosa v Bourke [760D]
"The second part of that composite problem is clearly a question of discretion, but I think the first is not. It is a question of fact, but it is a value judgment, or a qualitative decision, which I think ought not to be interfered with by us unless we are satisfied that it was plainly wrong." Re Coventry [487B]
"Now whatever the rights and wrongs of this matter may be, it seems to me that this was par excellence a case in which the decision of the judge should stand as to what is reasonable and what is not reasonable, unless it is clearly shown that he has gone wrong on a point of law, or in some way has misapplied the facts of the case to the law. Particularly in the case of small estates such as this one, appeals like this to this court are strongly to be discouraged. " ibid [492G], underlined in Re Hancock [353H] and adopted in Re Pearce 
The decision which falls to be made by a court in a case of this kind is essentially a qualitative decision; that is to say, the decision whether the disposition which the deceased has made, if any, is such as to make reasonable financial provision for the applicant. It is a qualitative decision, or what is sometimes called a 'value judgment'. A decision of that kind is one which is particularly difficult to disturb on appeal, unless the judge of first instance has clearly proceeded on some error of principle. There is no indication that I can find in Oliver J's judgment that he failed to take account of any relevant circumstance that he ought to have taken account of, or that he paid attention to anything to which he ought not to have paid attention, or that he erred in principle in any way." Ibid [495H]
"I am conscious that the decision of the judge was a value judgment which should not be interfered with by this court unless this court is satisfied that it is plainly wrong." Espinosa v Bourke [759A]