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||Neutral Citation Number:  EWHC 1396 (Ch)
||Case No: HC-2016-001218
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
Property Trusts and Probate (ChD)
IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
IN THE OF THE ESTATE OF MALKIAT SINGH UBBI DECEASED
London. EC4A 1NL
||27 July 2018
B e f o r e :
|| (1) MATTIA CORRADO UBBI
(2) GABRIELE CORRADO UBBI
(minors represented by their litigation friend and mother BIANCA MARIA CORRADO
||- and -
||SUSAN ELIZABETH UBBI
(as Personal Representative and beneficiary of the Estate of Malkiat Singh Ubbi Deceased)
Guy Holland (instructed by Monro Wright & Wasbrough) for the Claimants
James Weale (instructed by Russell-Cooke LLP) for the Defendant
Hearing dates: 10-12 January 2018, 8 June 2018, 18 June 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
MASTER SHUMAN :
- This is a claim by Mattia Corrado Ubbi and Gabriele Corrado Ubbi, brought by their litigation friend and mother, Bianca Maria Corrado, for an order under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") for reasonable financial provision out of the estate of their late father, Malkiat Singh Ubbi. The claim is brought against Susan Elizabeth Ubbi as personal representative and beneficiary under the will of Malkiat Ubbi.
- For ease of reference I shall refer to the relevant people in this claim by their first name. Bianca, as litigation friend, instructs Monro Wright & Wasborough LLP ("MW"). Susan instructs Russell-Cooke LLP ("RC").
- Mattia and Gabriele are the infant children of Malkiat. They seek a lump sum of £848,105.78 from Malkiat's estate. No provision was made for them in Malkiat's will dated 6 August 2010, which pre-dates their birth. Mr Weale, on behalf of Susan, accepts that Malkiat's estate was valued at £4,500,000 for probate purposes but suggests it may have a value of nearer £3,500,000. The principal assets comprise a pharmacy business, Walpole Pharmaceuticals Limited ("Walpole Pharmaceuticals"), and the former matrimonial home at 4 Walpole Gardens, Twickenham TW2 5SJ ("4 Walpole Gardens"). Susan says that she accepts that reasonable provision should be made for the boys and that if an order is to be made it should be for a lump sum. However, on Mr Weale's analysis and adopting the agreed methodology of Mr Holland, counsel for Mattia and Gabriele, his calculations lead to a lump sum of "-£254,627.82" so therefore no lump sum is payable to Mattia and Gabriele.
- In relation to quantum there are three significant areas of dispute between the parties: housing needs, childcare and private schooling.
- The parties are broadly agreed as to the applicable legal principles. In order to bring a successful claim Mattia and Gabriele must prove (a) they fall within the category of applicants under section 1 of the Act (b) that the disposition of Malkiat's estate effected by the Will does not make reasonable financial provision for them and (c) having regard to the matters set out in section 3(1) and 3(3) that an order should be made under section 2. The parties are agreed that if an order is to be made it should be a lump sum order under section 2(1)(b).
- Mattia and Gabriele bring this claim as children of the deceased, section 1 (1) (c) of the Act. As such they are entitled to seek "such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance", section 1(2)(b).
- The Will makes no financial provision for Mattia and Gabriele and the parties agree that the issue is therefore whether the court should exercise its powers under section 2 to make an order.
- Pursuant to section 3 of the Act,
"3.— Matters to which court is to have regard in exercising powers under s. 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."
- As this is a claim brought by the infant children of the deceased there are additional matters to take into account as set out in section 3 (3),
"3(3) Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(c) or 1(1)(d) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the manner in which the applicant was being or in which he might expect to be educated or trained…"
- In addition, under section 3 (5) when considering the matters to which the court is required to have regard to the court shall take into account the facts as known to the court at the date of the hearing.
- Further under section 3 (6) the court in considering the financial resources of any person for the purposes of section 3 the court shall take into account his earning capacity and in considering the financial needs of any person the court should take into account his financial obligations and responsibilities.
- Both counsel inform me that there is little specific guidance in respect of claims by infant children. In Re Coventry  Ch 461 an adult child sought financial provision out of his father's estate. He remained living with his father after his mother left the family home. The son was in paid employment when his father died. Lord Justice Goff at 485,
"In Re Duranceau  3 DLR 714 at 720, where, in somewhat poetic language, the court said that question is: "is the provision sufficient to enable the dependent to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?"
What is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited meaning on it; it does not mean just enough to enable person to get by; on the other hand, it doesn't mean anything which may be regarded as reasonably desirable that his general benefit or welfare."
- The Supreme Court in Ilott v The Blue Cross  UKSC 17 considered the scheme of the Act in respect of a claim by an independent adult child. Mr Weale submits that I should be guided by Ilott v The Blue Cross in respect of two matters of general application in these claims.
i) The importance of testamentary freedom.
Lord Hughes at paragraphs 12 to 13,
"12. The concept of "reasonable financial provision" is thus, by the closing words of section 1(1), made central to the jurisdiction to depart from the will or intestacy rules, as the case may be. ….In the case of all other applicants, however, section 1(2)(b) makes clear that reasonable financial provision means such provision as it would be reasonable for the applicant to receive for maintenance.
13. This limitation to maintenance provision represents a deliberate legislative choice and is important. Historically, when family provision was first introduced by the 1938 Act, all claims, including those of surviving unseparated spouses, were thus limited. That demonstrates the significance attached by English law to testamentary freedom."
ii) The limited scope of maintenance, in a case not brought by a current spouse or civil partner.
Lord Hughes at paragraphs 14 to 15,
"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 everything which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living."
Lord Hughes goes on to cite with approval the summary of Browne-Wilkinson J in In Re Dennis decd  2 All ER 140, 145 to 146,
"the court has, 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."
Further Lord Hughes reiterated that the statutory powers are to provide for maintenance not to confer capital on the claimant.
- The jurisdiction to depart from the terms of a will or the statutory distribution of an intestate estate is prescribed by the 1975 Act. When the Act is engaged there will only be a departure to award "reasonable financial provision". That represents a deliberative legislative choice and one that distinguishes between the more generous financial measure for spouses or civil partners and all other claimants, including infant children. I therefore have firmly in mind the twin principles that were re-emphasised in Illot v The Blue Cross: the importance of testamentary freedom and the limited scope of maintenance in a claim by a child.
- It is also worth observing that at paragraph 15 in Ilott v The Blue Cross Lord Hughes said, "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." Ilott v The Blue Cross, itself, concerned a claim by an adult daughter who had left home to live with her boyfriend at the age of 17. Despite attempts at reconciliation she was estranged from the testatrix for 26 years leading up to the mother's death. The testatrix left an estate worth £486,000 to various charities. The daughter had five children and lived in modest circumstances on benefits. After a tortuous appellate history, the district judge's award of a lump sum of £50,000 out of the testatrix's estate was restored.
- Mr Weale also drew my attention to the recent authority of Lewis v Warner  EWCA 2182, and the reiteration of the two principles of general application in Ilott v The Blue Cross, as set out above. However, I note that this was an application by an unmarried partner for reasonable financial provision. The unsuccessful appellant relied on Lord Hughes' judgment in Ilott v The Blue Cross to support the contention that Mr Warner could not succeed in his application because he failed to advance a case that he needed any financial provision. He was significantly financially better off than the deceased and able to afford alternative accommodation, and that the most he could say was that he would like to remain living in the property or that it was desirable for him to do so. On behalf of Mr Warner counsel pointed to the trial judge's findings that Mr Warner did have a need to stay in the property because of his age, disability, the length of time he had lived there, the contributions he had made to the running costs of the property and the help provided by his neighbours. The Chancellor in a careful analysis of the law reminds judges at paragraph 16 about the test in section 1(2),
"16. The condition for making an order under the 1975 Act is that the will, or the intestacy regime, as the case may be, does not "make reasonable financial provision" for the claimant: section 1(1) . Reasonable financial provision is, by section 1(2), what it is "reasonable for [the claimant] to receive", either for maintenance or without that limitation according to the class of claimant. These are words of objective standard of financial provision, to be determined by the court. The Act does not say that the court may make an order when it judges that the deceased acted unreasonably. That too would be an objective judgment, but it would not be the one required by the Act."
He went on to conclude that the recorder had found that Mr Warner was being maintained by the deceased as she was providing him with a roof over his head. Taking account of the section 3 matters he needed that maintenance to continue rather than requiring him to move house and the appeal was dismissed.
- Mr Holland refers me to a decision of Mr Justice Carswell in McIlveen v Patton  3 NIJB 35. This was an application by the children of the deceased for financial provision under the equivalent Northern Ireland statutory instrument. The children, twins, were 13 years old. The deceased had taken little interest in the children and only paid maintenance after the mother obtained an order against him. The court ordered each child to receive a lump sum of £10,000 out of the deceased's estate. Mr Holland derives three propositions from this case: (i) the needs of an infant child rank very high in the order of priority and should normally rank well before the needs of other beneficiaries; (ii) their illegitimacy does not entitle them to a lesser sum than if they had been born legitimate; (iii) such lump sums as are ordered are properly to be considered as capitalised annual maintenance payments.
- As to the first proposition Mr Holland relies on a passage from Mr Justice Carswell at 51B,
"the claim of infant children is nevertheless expressed in terms of a moral claim in Tyler's Family Provision (2nd edition) at page 151 in the following terms:
"infant children have probably the strongest moral claim upon the deceased's estate. Few moral claims are as strong as the claim of one who has been brought into existence by the act of another and who is incapable of supporting himself."
Although I am myself reluctant to phrase the proposition in terms of a moral claim, this view succinctly expresses the weight of the claim which an infant child of a testator has when one goes through the process of balancing the factors specified in Article 5 (1) of the 1979 Order. It demonstrates in vivid terms the fact that a child's financial needs should rank very high in the order of priorities, and that in the assessment of those priorities they should normally rank well before the needs of other beneficiaries."
- The Act does not provide for the financial needs of an applicant infant child to be elevated to a first or paramount consideration as, respectively, section 25 of the Matrimonial Causes Act 1973 or section 1 of the Children Act 1989 in the context of welfare provide. Often there may be competing interests between an applicant infant child and infant beneficiaries. These need to be balanced when considering all of the factors set out in section 3. I consider it unhelpful, as was suggested to me, that I should determine whose needs take priority: those of Jarnail or those of Mattia and Gabriele. Those needs must be considered in the round. Each case will be determined on its own facts. However, the fact that a claim is brought by an infant child is a vital part of the factual matrix. Unless the child has independent means he or she is reliant on financial, physical and emotional support from others. In the vast majority of cases that will be provided by his or her parents either voluntarily as part of their parental role or by the imposition of an order by the court for financial support and/or child arrangements.
- As to the second proposition for the purposes of the Act I consider that the bare fact that a child was born within or outside of a marriage is irrelevant. How he or she was treated by the deceased, however, may be relevant.
- If by the third proposition Mr Holland is in effect submitting that the provision should not be to provide the child with a capital sum on attaining majority, I agree. The purpose of the 1975 Act in cases not involving spouses or civil partners is to provide maintenance. A lump sum order in such a case is in effect capitalised maintenance.
- In a detailed exposition Mr Weale has sought to draw a parallel between the manner in which the court should approach an application for reasonable financial provision by an infant child and the jurisdiction of the court under schedule 1 of the Children Act 1989. He refers to analysis by Andrew Francis in Inheritance Act Claims: Law, Practice and Procedure at 11 on specific issues that might arise in such an application. In broad terms this sets out the section 3 factors most likely to arise in claims brought by infant children.
- I can see the allure in Mr Weale's submissions. However, all that can provide me with is general guidance on how I might approach a case. He bench marks the claim by the approach the court might have taken if the application was made under Schedule 1 of the Children Act 1989 rather than the 1975 Act. I am unclear where that takes me in respect of this claim. For example, Mr Weale submits that where a respondent earns less than £156,000 gross per annum, as would have been the case here, the court would have had no jurisdiction to order maintenance payments over and above what was determined by the child support agency. His point is that Malkiat's maintenance payments would have been limited to £256 per week for both Mattia and Gabriele. That disregards that a Schedule 1 application is wider than maintenance and this does not provide a good analogy. By way of illustration in Re M-M (A Child)  EWCA Civ 276 O was conceived during a short relationship when her parents were work colleagues. The father had no involvement in her life. The mother was dependant on benefits and sought maintenance through the CSA in 2004. The father moved to France and when he was contacted by French authorities in 2010 he agreed to pay £1,200 per month and three lump sum payments of £10,000 each. The CSA figure was £720 per month. The arrangement was not legally binding, and the mother sought an order under Schedule 1 for periodical payments of £24,000 per annum together with a lump sum of £180,000. She was awarded a lump sum of £44,620 to discharge credit card debts owed by the mother and periodical payments of £1,000 per month, which were upheld on appeal. In addition, the father was ordered to pay further periodical payments equating to 15% of his bonus, which was reduced on appeal to 11.25%.
- Mr Weale also submitted that reference could be made to the Centre of Economics and Business Research report on the costs of raising a child. The headline costs of raising a child through to 18 years of age, excluding private school fees, is £227,226. He went on to submit that research produced by Liverpool Victoria insurance suggests that the average cost of raising two children aged 2 and 4 to age 21 is £377,465. As Bianca would be required to meet her fair share of costs that would amount to a need for £188,732.50. I am not concerned with averages I am concerned with the claim by Mattia and Gabriele and determining what it is reasonable for them to receive in all the circumstances of their case for their maintenance.
- I do not consider it helpful to have an overly rigid approach although certainly my approach must be principled by the application of the factors set out in section 3 of the 1975 Act. This includes consideration at (g) of any other matter which the court considers in the circumstances may be relevant. Guidance from approaches in Schedule 1 applications can only be just that, a guide, they may be helpful but can never be determinative of a claim. The jurisdiction I am exercising is under the 1975 Act.
THE BACKGROUND AND FACTUAL MATRIX
- In 1987 Malkiat and Susan's relationship commenced. Susan was aged 38 years and Malkiat 27 years. At that time Susan had a daughter from a previous relationship, Jesse, she was one year old. I am told by Mr Weale that Malkiat treated Jesse as his own daughter. In opening I questioned Mr Holland on Bianca's position on this and he said that this was not disputed. Although Jesse is now aged 31 years she has struggled to gain independence and remains living at home. She suffered a horrific hammer attack at the hands of Levy Belfield when she was only 17 years old.
- In 1988 Malkiat and Susan purchased their first house together. Malkiat was a pharmacist and together with Susan they built up Walpole Pharmaceuticals. He had initially worked there as an employee in the late 1980's and then acquired it as a going concern some two years later. Susan worked as a secretary and personal assistant to an architect until Jarnail was born. She worked evenings and at weekends at Walpole Pharmaceuticals. She became responsible for book-keeping and administration but not day-to-day operation. Susan carries on in that position to date. Walpole Pharmaceuticals operates from 366 Richmond Road, Twickenham TW1 2DX which comprises the business and three small flats. The freehold title was registered in Malkiat's sole name.
- On 20 June 1994 Jarnail was born to Malkiat and Susan; he was three months premature. Jarnail suffers from hemiplegia, paralysis to one side of the body, and learning difficulties. He has limited use of his left hand, little strength on the left side of his body and suffers from a limp. In a statement of special education needs dated 13 September 2001 he is described as having mild left hemiplegia and learning difficulties.
- In September 2000 Susan and Malkiat married. They purchased 4 Walpole Gardens for £1.4 million and held it as joint tenants. From October 2000 Susan, Malkiat, Jarnail and Jesse lived at 4 Walpole Gardens. In late 2000 Malkiat's mother moved into 4 Walpole Gardens and remained living there until her death on 2 November 2010. She had renal failure and was on dialysis. Susan became her primary carer.
- Susan's evidence, which I accept, is that the family never had an au pair, nanny or cleaner; she juggled her role as mother together with Jarnail's additional care needs, home maker and wife with working in Walpole Pharmaceuticals. However the couple enjoyed a good standard of living, Malkiat was usually careful with money.
- Bianca was born on 26 May 1977 and is currently aged 40 years. She is a pharmacist who qualified in Italy, specialised in hospital pharmacy and obtained her doctorate there. In 2007 she moved to the United Kingdom for better career prospects. Her aspiration has always been to work as a hospital pharmacist as she considers that a more demanding role. She started working with Malkiat at his pharmacy in Summer 2007 and they had an affair.
- In September 2008 Bianca returned to live in Italy. Her evidence is that in January 2009 she returned to the United Kingdom, Malkiat having asked her to return. In April 2009 she started working for Boots initially as a relief pharmacist, then a store-based pharmacist to promotion as a pharmacist manager in September 2011, based at the Hampton pharmacy.
- Bianca's evidence is that she understood from Malkiat that Susan knew about their on-going relationship. I am unclear from the evidence when Susan first discovered that Malkiat was having an intimate relationship with Bianca, possibly 2009 or 2010. In Jarnail's statement he says that it was only after the death of his grandmother on 2 November 2010 that "it all came out" and "Dad would not admit to it at first". He was not called to give evidence, but no issue was taken with this part of his statement. It is to Bianca's credit that she did not require him to be cross-examined.
- In January 2010 Bianca purchased a 2 bedroom flat at 24 Cambridge Park Court, TW1 2JN ("24 Cambridge Park"). She funded the purchase from her earnings and a mortgage.
- On 6 August 2010 Malkiat executed his will ("the Will"). Under clause 1 he appointed Susan as executrix and trustee and in default the partners at Baron Grey solicitors. Under clause 3 he devised all his real and personal property to Susan. If she predeceased him or did not survive him by a period of 28 days under clause 4 he left his estate on trust to Jarnail, appointing Jesse and Bhupinder Hunjan as his guardians during his minority.
- In August 2010 Malkiat and Susan purchased 22 Poplar Court, Richmond Road, East Twickenham TW1 2DS ("Poplar Court") for the price of £410,000, partly funded by a mortgage. This is a 3 bedroom flat. They held 22 Poplar Court as joint tenants.
- On 21 March 2012 Mattia was born. Malkiat remained living at 4 Walpole Gardens albeit that he spent several nights a week with Bianca and their new baby. Susan's evidence is that Malkiat told her that Bianca's pregnancy was an accident and that he was simply helping her with the baby. Bianca's evidence is that Mattia's birth was planned as part of her and Malkiat's new life together. Malkiat was keen to start a family quickly because at 51 years old he did not want to wait any longer. He wished to be an active parent. I am satisfied that both Susan and Bianca are telling me the truth, that is what they were told or led to believe by Malkiat. He must have been torn between his devotion to Susan, Jarnail and his old life and his new family with Bianca. Sadly, that double life has led directly to the current litigation.
- In 2013 Malkiat decided to move Bianca into Poplar Court. I accept Susan's evidence that he did not discuss this with her. That also explains her reaction to discovering in November 2013 that Malkiat was moving her into the flat.
- On or about 27 December 2013 Malkiat moved out of 4 Walpole Gardens and into Poplar Court with Bianca. Susan says that was because she forced him to leave; she felt humiliated that Malkiat had moved Bianca into a property that Susan and Malkiat jointly owned. On her evidence it was only 6 months later that she discovered that Bianca was pregnant again and that was only a matter of weeks before Gabriele's birth.
- Gabriele was born on 23 July 2014.
- In mid-2014 Susan sought advice from a solicitor about divorce. She instructed RC to act on her behalf. On 24 September 2014 Susan petitioned for divorce on the grounds of Malkiat's adultery. The particulars state that Malkiat had been committing adultery since January 2011. The petition sought all forms of financial relief although I am told that no notice of intention to proceed with an application for a financial order, Form A, was served. On 15 January 2015 the joint tenancy of 4 Walpole Gardens was severed by Susan. Her evidence was that she expected to die first and that she did not want Jarnail's inheritance compromised. I do not accept that that evidence is consistent with Susan's case that she was reconciled with Malkiat at the date of his death. Decree nisi was pronounced on or about 28 January 2015.
- On 8 February 2015 Malkiat died unexpectedly from septicaemia. He was only 53 years old. He had been living with Bianca for about 13 months prior to his death. Mattia was nearly 3 years old and Gabriele six months old. Bianca was on maternity leave at the time, but she returned to work full-time in June 2015.
- Susan says that she was reconciled with Malkiat at the time of his death. She describes Malkiat as the love of her life and that they had been together for 28 years. In contrast Bianca describes being in a loving and committed relationship with Malkiat. Moving into Poplar Court and the birth of their second child signified the end of his marriage to Susan. I doubt that Malkiat was fully frank with Susan and Bianca. In Bianca's perspicacious words about Susan's version of events,
"She depicts a life and relationship with Malkiat that is the direct opposite of what he told me, and I believed to be the case…….
it may well be that in time I have to revise my opinion of him as a loving partner and devoted father, to accept that he was selfish and irresponsible, creating a terrible mess of several people's lives from which he had left us all to try and make sense of the situation".
- I do not however accept Susan's evidence that she was reconciled with Malkiat at the time of his death although she may have retained a hope that they might reconcile in the future. That hope may well have been encouraged by Malkiat, but it was nothing more than that, "a hope". Malkiat was living with Bianca at the time of his death, they had just had their second child. I accept Bianca's evidence that they had discussed having a third child and that Malkiat had assured her that they could afford to have another child. One thing that the parties agree on is that Malkiat was a loving and devoted father. Susan petitioned for divorce in September 2014, Malkiat did not defend the petition. Malkiat spent Christmas 2014 and the New Year in Italy with Bianca, their children and her family. On 15 January 2015 Susan severed the joint tenancy in respect of 4 Walpole Gardens. Decree nisi was pronounced on 28 January 2015. Contrary to the suggestion made to me, this does not occur automatically on petitioning for divorce. Under the Family Procedure Rules 2010 rule 7.19 an application is made to the court for it to consider making decree nisi. There is no suggestion that Malkiat made that application. Therefore, Susan must have made that application and by doing so was confirming that she considered that the marriage had irretrievably broken down. RC wrote to MW on 11 December 2015, on Susan's instructions, stating that Malkiat "deliberately prevented decree absolute". This was clarified by letter dated 22 April 2016 to mean that "he made no attempt to reach an agreement with our client as to a division of assets". I do not accept on the evidence before me that Malkiat prevented the pronouncement of the decree absolute.
- On 20 October 2015 Susan was granted probate, the grant was extracted by Baron Grey solicitors.
- On 19 April 2016 the claim was issued seeking an order for reasonable financial provision for Mattia and Gabriele and an order that pursuant to section 9 of the 1975 Act the court takes into account Malkiat's severable share of all joint tenancies held by him immediately prior to his death.
- Since July 2015 the parties' solicitors have been engaged in correspondence. The parties disagree as to how much of this has been meaningful and what if any issues have been narrowed. Certainly, as at 15 May 2015 Susan had instructed her then solicitors to write stating that "our client has always intended to make a provision for your client's children from the estate." On 23 September 2015 RC wrote to Bianca's previous solicitors stating, "With regards to the children, our client will make such financial provision as she sees fit, when she is ready and when she has all the financial information available." Indeed in her first witness statement, paragraph 6, Susan says, "I have great sympathy for the Claimants …. and I accept that reasonable provision should be made for them out of the estate." Although her position adopting Mr Holland's methodology is that in fact Mattia and Gabriele have made out no case for maintenance.
- Mr Weale makes justified criticism of the manner in which the claim brought by Mattia and Gabriele has vacillated in terms of quantum; £1,990,602.70 on 9 March 2016, £2,337,735.70 on 24 October 2016, £1,075,226.57 on 22 June 2017 to the current open position of £848,105.78.
- Both sides criticise the other for the manner in which the claims have been formulated and whether additional parties should have been joined. On behalf of Mattia and Gabriele it is suggested that Jarnail should have brought a claim in his own right and that it is inappropriate to factor in his needs by reference to Susan's financial obligations. It is unquestionably relevant to factor in his on-going needs whether under Susan's needs, section 3(1)(c) or indirectly under section 3(1)(d) or under section 3(1)(g) as any other matter which the court may consider relevant in the circumstances. Mr Weale explained that Susan did not wish the estate to incur additional legal costs when she will continue to be responsible for meeting Jarnail's financial and non-financial needs. I can see the force in that position.
- On behalf of Susan it is suggested that Bianca should have made her own claim against Malkiat's estate and that in effect she is seeking provision through her children. Indeed Mr Weale's position in his skeleton argument is stark, Bianca "has sought to use these proceedings as a means of obtaining provision for herself to which she would otherwise have no entitlement". I do not accept that characterisation of Bianca having heard her give evidence and from the written evidence before me. Mr Holland submitted that Bianca's only concern was about the future and best interests of Mattia and Gabriele. She did not wish to dilute her own children's claim and incur additional legal cost. Bianca had a potential dependency claim, albeit not as a cohabitee. The evidence is that she was financially supported by Malkiat prior to his death and indeed they were living "rent free" in Poplar Court at the time of his death. Again, I can see the force in Mr Holland' submissions. I accept that Bianca is a devoted mother who is not manipulating these proceedings for her own ends but, very much like Susan's own protective instincts towards her own children, she wishes there to be reasonable financial provision for her own very young children.
- There is sufficient flexibility within the 1975 Act for me to take account of other relevant matters which here include the financial resources of Bianca, the financial resources of Susan and the financial needs of Jarnail. Further section 3(1) directs the court to have regard to the financial needs and resources of applicants, other applicants and beneficiaries. Section 3(6) directs the court to take account of the earning capacity of any person when considering their financial resources and their financial obligations and responsibilities when considering their needs.
- The parties agree that a lump sum order should be made in this case. This necessarily involves Mattia and Gabriele giving up any right to return to court for further provision whether by way of seeking a variation of a periodical payments order or to even capitalise periodical payments to a lump sum order at a later stage. With such young infant children I must be cautious that the capitalised order meets their maintenance needs whilst bearing in mind that provision under the 1975 Act is to provide financial provision which meets the everyday expenses of living and does not extend to everything that it might be desirable for them to have or indeed to provide them with a capital sum.
- The parties also agree on the methodology of quantifying the claim. The parties have adopted a multiplier multiplicand methodology using Ogden table 28 for each of the on-going costs to be incurred in raising Mattia and Gabriele. I have been provided with a schedule of dependency which on behalf of Mattia and Gabriele amounts to £1,749,744.78 and on Susan's case £647,011.18, albeit subject to argument on Bianca's total income figure. From that sum should be deducted a figure that I determine is Bianca's contribution to Mattia and Gabriele's living expenses. MW have calculated this figure to be £901,639 which is 65% of Bianca's stated income of £63,512 per annum over 18 years with 2% compound interest. Although Mr Holland submits that "this is the very highest figure that she might be reasonably expected to contribute towards those costs" he seeks a figure on behalf of Mattia and Gabriele in the sum of £848,105.78. That is the figure set out in the schedule of dependency which is calculated by deducting Bianca's contribution, on his figures, of £901,639. Mr Weale takes issue with Bianca's income figure suggesting that it is substantially understated. Both parties' cases are presented on the basis that I determine the base figure of Bianca's income and then they have agreed to calculate that arithmetically over 18 years with compound interest at 2%.
- As I have indicated the parties' primary issues on quantum concern: (1) housing needs with Mattia and Gabriele's claim being £702,080 and Susan's response £335,680.97; (2) childcare with Mattia and Gabriele's needs said to be £234,234 contrasted with Susan's figure of £79,200; and (3) school fees where Mattia and Gabriele's claim is for £461,685 to fund private school fees and Susan's case that they should be schooled within the state system and no figure should be awarded.
- Before turning to consideration of the section 3 factors I shall deal with the significance of the Will.
- It was executed on 6 August 2010. The factual context is that in 2009 Bianca had returned from Italy to continue her relationship with Malkiat. He remained living with Susan. In evidence Susan said that she had found out about the affair because of a skype conversation, that was possibly in 2009 or 2010. Malkiat assured her it was flirtation, Bianca had been an employee at Walpole Pharmaceuticals and returned to Italy. Susan's evidence was that Malkiat assured her the affair was nothing, just flirting and that he had no contact with Bianca after she returned to Italy. This revelation stunned Susan, she had thought they had an amazing marriage. When Bianca returned and became pregnant Malkiat told Susan it was an accident. Mattia was not born until 21 March 2012. Malkiat assured Susan that everything would work out and she just needed to be patient. As Susan says she believed Malkiat, she adored the man and always had done.
- In August 2010 Poplar Court was purchased and the Will was executed. At that stage, whilst Malkiat was undoubtedly having a relationship with Bianca, he remained living with Susan and made it clear to Susan that he was committed to their marriage. This was at an early stage in Bianca and Malkiat's resumed relationship. Bianca's evidence was that when they decided to start a family together she fell pregnant quite quickly.
- Testamentary freedom is of course important. However given the factual context I do not infer that Malkiat consciously chose to exclude Bianca or any future children from his estate.
- In evidence Susan said that she had discussed the making of new wills with Malkiat a few months before he died. That she told him their divorce would make the 2010 will no longer valid. Her evidence is that Malkiat told her that his new will would be the same, that is, his estate would be left to Susan so that she could provide for Jarnail. That evidence does not sit comfortably with Susan's case that she had reconciled with Malkiat before his death and that he had prevented her from divorcing him. I do not accept Susan's evidence on this point. In any event even if it had been said to her, given the pattern of Malkiat saying one version of events to Susan and another to Bianca, I do not accept that they represented his fixed testamentary wishes.
- In my view the Will was made at a time when the relationship with Bianca had only recommenced for 18 months, Malkiat remained living with Susan at the family home and Mattia and Gabriele had not been contemplated by Malkiat. I therefore conclude that, whilst testamentary freedom is of course a fundamental right, on these facts the significance of the provisions of the Will have limited bearing on the case. In so far as it is suggested on behalf of Susan that I should place significant weight on the provisions of the Will and that this must impact on balancing the financial needs of Mattia and Gabriele against the financial needs of Jarnail through Susan I reject that argument.
- I now go through the factors set out in section 3 of the 1975 Act, although I have already dealt with some of these matters, and my findings on the disputed issues.
THE SECTION 3 MATTERS
(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future
- Given the ages of the claimants they are reliant on Bianca and will be for at least the next 12 and 15 years respectively although it is highly likely to be longer if they both go on to university, as Bianca hopes they will do. Her resources are therefore relevant.
- Bianca's assets are said by Mr Holland to total £1,201,213. They comprise:
i) A 2 bedroom flat at 24 Cambridge Park Court, TW1 2JN which Bianca purchased in January 2010. This is rented out for £1,450 per month gross and is said to have a value of £547,000.
ii) A 1 bedroom flat at 42a Elm Bank Mansions, SW13. This was purchased in October 2014 for £420,000. It is registered in Bianca's sole name but her case is that she holds it on trust for herself as to two-thirds and her sister, Federica Corrado, one-third. Bianca's interest is said to be worth £250,800. There is no declaration of trust. Federica has provided a witness statement in which she says that following the sale of their parents' seaside villa in Italy she was able to pay £110,000 and Bianca £220,000 towards the purchase price. The balance was funded by a mortgage of £105,000 which Bianca explains was in her name because Federica is resident in Italy and it seemed simpler. Her evidence is that they agreed that she would own a one-third interest. Mr Weale challenged Bianca's evidence on this point in cross-examination. It was put to her that she retains 100% of the income from the flat and pays all of the outgoings and this is consistent with her owning all of the beneficial interest in the property. However there is a pattern of Bianca and Federica sharing assets and rental income in Italy. Bianca's evidence was that she shared the beneficial interest in the property with Federica. That evidence was supported by Federica's witness statement. They appear to be a close family not least because the sisters lost their parents at an early age. Federica's statement refers to the family warmly accepting Malkiat as Bianca's long-term partner. Malkiat even paid for Federica and her daughter to join them on a holiday in New York. Bianca in evidence said that she is currently using all of the rental monies from the flat to fund this litigation. She says that substantial maintenance works are needed to the flat but her sister does not have the funds to pay for them and clearly nor does she at this juncture. She describes a wall having been knocked down prior to Malkiat's death. None of this undermines Bianca's evidence that she holds the property on trust for herself and her sister in the shares two thirds and one third. I accept her evidence on ownership.
iii) Various Italian properties in which Bianca has a beneficial interest with family members. Her interests have a total value of £381,402. There are properties in Castrovillari, Naples and Lecce. There are translated valuation reports before me from Rodolfo De Franco, Massimo Andreassi and Francesco Leone.
(a) As to the properties in the village of Castrovillari:
N 1. the commercial space is in mediocre condition. Bianca has a 1/2 interest. It is rented out and Bianca's share is €5,400 per annum of which tax and her share of maintenance costs must be deducted.
N2. This is an unfurnished apartment on the second floor of a block with poor finishes. 1/2 of the rental value could be €1,500 to 1,800 gross per annum.
N3. This is an unfurnished apartment on the third floor of a block with poor finishes. 1/2 of the rental value could be €1,200 to 1,500 gross per annum.
N4. This is an apartment over two floors of a block with finishes ranging from good but old to mediocre. 1/6 of the rental value could be €800-900 gross per annum. This was the original family home of Bianca's grandparents.
N5. This is a garage and is part of N4. 1/6 of the rental value could be €133-166 gross per annum.
N6. This is a building on two floors. The internal finishes are poor and old-fashioned, the external finishes are described as mediocre. 1/6 of the rental value could be €750-833 gross per annum.
An apartment of mediocre standard. It is currently rented. 1/2 of the rental is €7,500 gross per annum.
1. This could be used as a parking space if the electricity supply is updated and connected. It is in poor condition. If the electricity supply was updated 1/6 of the rental value could be €10 gross per month.
2. This can only be used for garage or storage and is unused. It is in a poor condition. If the electricity supply was updated 1/6 of the rental value could be €10 gross per month.
3. This was used as a grocery store and is in a terrible state. The property is condemned. It could potentially have a rental potential for 4 parking spaces. 1/6 of the rental value could be €33.33 gross per month.
4. This is a 3 bedroom apartment in poor condition with no independent staircase. It cannot currently be rented because it is condemned. 1/6 of the potential rental value could be €30 gross per month.
It was suggested to Bianca in cross-examination that she had had discussions with the valuers which were designed to suppress the values. It was further put to her that she had given estimates of value for these properties that were substantially under their true valuations. All this was pointing to a degree of duplicity on the part of Bianca. She explained in evidence that she had simply given approximate values after speaking to agents. The values set out in the reports were given by the valuers acting as independent experts. I accept Bianca's evidence on this and moreover accept the valuations in these reports and the state of the properties as described. The evidence comes nowhere near supporting what counsel for Susan was implying. I conclude that Bianca was being truthful in her evidence to her court and that she was being full and frank.
(iv) Spread betting. Some time was taken up in evidence on the income that was derived from this source. I am unclear why. Both parties agree that Malkiat was involved with this and derived income from it. This also explains how Malkiat was able to fund both households and a very comfortable living standard during the last few years of his life. I do not find that Bianca was an active participant in this activity, although she along with Susan indirectly may have provided Malkiat with cash injections to fund this.
- Bianca, Mattia and Gabriele currently live in the 3 bedroom flat at Poplar Court. That position cannot continue. The parties agree that this is a case where there should be a 'clean break' in respect of the finances. Poplar Court was held by Malkiat and Susan as joint tenants and has passed under the doctrine of survivorship to Susan.
- Under section 9 of the 1975 Act I may order, for the purpose of facilitating the making of financial provision for Mattia and Gabriele, that Malkiat's severable share in 22 Poplar Court be treated as part of his net estate. I may order that to such extent as appears to be just in all the circumstances. Unless I order otherwise the value of that share is the value that it would have had at the date of the hearing of the application for an order under section 2 had the share been severed immediately before Malkiat's death.
- Susan has ultimately permitted Bianca and the children to remain living in Poplar Court during these proceedings, albeit with some historical reluctance. On Susan's own evidence Bianca moving into Poplar Court was a temporary arrangement.
- Bianca describes the flat as too small and in need of refurbishment. In her first witness statement at paragraph 37 she says that Malkiat had talked about buying a 4-bedroom house in the Twickenham area. Realistically she accepts that such a property would cost in the region of £1,700,000. Bianca's says that her mortgage capacity is about £180,950 and with funds that she could realise from the sale of a property there would still be a shortfall of £1,000,000. Although I do note that in the schedule of dependency needs attached to her statement dated 21 October 2016 that it was stated that Poplar Court "is small but currently suitable for the family's needs – [Bianca] anticipates she may need to move around the time that [Gabriele turns 11]".
- The test under the 1975 Act is "such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance". The claim under the 1975 Act is not to provide Mattia and Gabriele with capital but to provide them with maintenance.
- Bianca's evidence is that the boys need a 4-bedroom property at a monthly cost of around £4,400. She justifies a 4-bedroom property on the basis that each of the boys requires a bedroom, as does the person providing live-in child care. Without the financial support of Malkiat, Bianca has to work longer hours than she had planned to whilst the children were young. Bianca's property particulars include a 4 bedroom apartment in Richmond Bridge Mansions, East Twickenham for rent at £4,500 per month. Another is a 3 bedroom penthouse, which would not meet her needs, at a monthly rental of £5,600. In comparison Susan has produced example of properties ranging from £1,300 to £2,395 per month. Many of these are 3 bedroom flats.
- Bianca's schedule of dependency, as at 24 October 2016, claims either £671,090.92 to fund renting and removal costs, £1,113,990 to purchase a property or £65,271.68 if they were to remain in Poplar Court to fund renovation works with no rent being paid to Susan.
- Bianca's evidence was that after Gabriele was born Malkiat's main wish was to move to a bigger house with a small garden. They had discussed having a third child. Throughout all of the conflicting evidence between the parties one consistent thread has been that Malkiat was a devoted father to his children. He had planned on doing works to Poplar Court in order to sell the same to fund a house for him and his family with Bianca. I accept Bianca's evidence on this.
- Bianca's initial position was that Poplar Court was suitable for her and the children's needs, although she thought that they might need to move when Gabriele was 11. It was put to her that her schedule for housing provision has doubled in the course of this claim. She frankly accepted that. Bianca accepted that she had thought about the situation with the children. That they each needed separate rooms with a place to study. Given the hours that Bianca works she needs someone in the house with them. She had not factored this into her first schedule. The cross examination of Bianca followed a pattern of chipping away at her figures, suggesting that at certain points in their lives she could simply uproot the children. For example, that the children could continue to share a bedroom until Gabriele reached 11 years. Her need for professional child care would change as the boys went on to secondary school.
- When considering reasonable financial provision and maintenance for the children I bear in mind the standard of living enjoyed by both Susan and her family and that of Bianca whilst Malkiat was alive. I accept Bianca's evidence that Poplar Court was a temporary home for Malkiat, her and the children and that they intended to purchase a 4 bedroom home with a garden. That is also consistent with my finding that Malkiat and Bianca had discussed and intended to have a third child. I also bear in mind the size of the net estate and the resources available to Susan. As to maintenance Lord Hughes in Illot v The Blue Cross reiterated that the level at which maintenance may be provided is flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level.
- I do not accept that allowing housing costs at the amount suggested by Susan, £335,680.97 which equates in crude terms to a rental of £2,500 per month, meets the reasonable financial needs of the children for maintenance. Mr Weale also provided me with an alternative calculation, although this was not his case, that if I allowed rental of £2,395 per month for 3 years and then rental of £1,900 per month for 13 years that would produce a figure of around £400,000. Given my findings in this case as to the needs of the children and that they will inevitably change over time I find this methodology more realistic. Considering the property particulars that have been placed in evidence I find that a rental of £4,000 to £4,100 per month represents Mattia and Gabriele's reasonable financial needs for the next 8 years. In particular I find that the 4 bedroom terraced house in Twickenham for £4,000 per calendar month and the 4 bedroom house in East Twickenham for £4,100 per calendar month would meet the children's maintenance needs. I take into account that it would be preferable for the boys to have a home with a garden, as Malkiat wished for them. When Gabriele has settled into secondary school their reasonable financial needs will be met by moving to a 3 bedroom property. At that stage Bianca will no longer need quite the same level of professional child care and the person providing child care would no longer need to live in the house. I consider at that stage that they could realistically downsize to a 3 bedroom property. Doing the best that I can on the available evidence and given the uncertainty of predicting into the future I consider that they should be able to move to a property where the rental is £3,000 per month, perhaps a little more. In that regard the property particulars for a 3 bedroom house in Dorchester Mews, St Margaret's for £2,950 per calendar month would meet the boys' maintenance needs. This should be factored over a period of 8 years until Gabriele is nearly 20 years. That equates to the exercise carried out by Mr Weale. On crude calculations that totals £672,000 rather than the £702,080 claimed by Bianca. That sum will also need to allow for two lots of removal costs. Bianca suggests that moving once would cost £1,600. Given that the second move will occur in 8 years' time I think it reasonable to round those sums to £4,000.
- I invited submissions from counsel to calculate the amount to be allowed for housing costs by applying the agreed methodology to my findings. Mr Weale submitted that a multiplier of 7.26 should be used, adopting a discount rate of 2.5% over 8 years in table 28 of the Ogden tables. This he submits produces a total figure of £609,840 (£348,480 plus £261,360). Mr Holland submits that the parties use a discount rate of -0.75%, table 28, which gives a multiplier of 8.25. There should be consistency in approach and I agree that a multiplier of 8.25 should be used. Therefore,
£4,050 x 12 x 8.25 = £400,950
£3,000 x 12 x 8.25 = £297,000
So the total housing maintenance needs are £697,950 plus removal costs of £4,000 which equals £701,950.
- Mr Holland submits that Bianca's income totals £63,512.49 net per annum, £71,808.89 gross per annum. Bianca produced as part of her evidence a document described as summary of income and expenditures. For the period 2006/2017 her taxable income including rental income is said to be £71,808.89. After tax that equates to a sum of £63,512.49. It is this figure that was used by Mr Holland as the base figure to calculate that a 65% contribution towards the financial maintenance needs of Mattia and Gabriele over the period of 18 years amounts to £901,639.00. Although RC used this figure in the counter-schedule, specifically in the summary, I accept that it is Susan's case that Bianca had understated her income. Mr Weale submits that Bianca's income, adopting a conservative basis, should be £77,475.19 net per annum.
- In cross-examination it was put to Bianca that she had substantially understated both her income from the properties in Italy and her rental income from the properties in the UK. I note that no expenses are included in respect of the properties in Italy and there has been no calculation of her tax liability in Italy. There is a discrepancy in her tax return for 2016/2017 as only one property is declared. Bianca candidly admitted in evidence that there were two properties and both should have been included. She cannot explain why only one was declared. I accept Bianca's evidence that this was simply an error. I do not accept that she had sought to deceive the relevant tax authorities. Bianca's accounts are prepared by an accountant she provided the figures to her accountant and they completed the tax return on her behalf. She thought that her rental income amounted to approximately £8,400 but as the accountant has put in the figure of £6,747 that must be accurate. She was cross examined about the level of expenses for the UK properties. She set out carefully in her evidence works that needed to be carried out, for example, the leak in the bathroom, the wall that had been knocked down. I accept Bianca's evidence on the income that she derives from the UK and the expenses that she incurs. Mr Weale has stated that I have also accepted the written reports of the experts on the Italian properties, the reports covered both capital value and rental income. As I have already referred to above it was put to Bianca in cross-examination that in discussions with the experts she had sought to suppress the true values of the Italian properties. I did not accept that Bianca had done this. The experts have provided opinions to the court as to the potential rental values of the properties, they are simply opinions. I have accepted the factual evidence of Bianca as to the income that she receives. The nature of the agreed methodology means that I have had to make findings on what that income is now; the parties having agreed that that income should then be arithmetically calculated over an 18 year period with 2% compound interest applied. It has never been part of Susan's case that if, for example, I accept Bianca's evidence as to her income now that that will increase in say 5, 10 or 15 years' time. It may do. Bianca may sell a property, she may not. She may earn more by way of rental income, she may have unexpected expenses. However the parties have agreed the methodology to be used in this case and that I am to make a lump sum award rather than on-going maintenance. I am concerned with the financial maintenance of two very young children.
- For completeness and given Mr Weale's very through submissions I will go through the income from the properties.
- Properties in Italy
Mr Weale submits that the income derived by Bianca from the Castrovillari properties should be £8,000 per annum not £2,235.65 as stated. Whilst I have accepted the evidence of the valuation reports before me those reports describe the properties as being of mediocre condition within blocks ranging from good but old, to mediocre or poor. Furthermore Bianca owns none of these properties outright: she has a 1/6 share in 3 properties and a 1/2 share in the others. I do not have specific evidence on how much it costs to maintain these properties or indeed whether works might be needed to actually achieve the values stated by the experts as being possible. In the updated valuation report dated 23 May 2017 the experts state that N1 is now rented and Bianca's share is €5,400 per annum. However that figure does not include her share towards maintenance costs and any other costs that may be incurred in renting out property in Italy and it does not include a deduction for taxes. I have already accepted the evidence of Bianca as to the income that she derives from these properties and that is £2,235.65 per annum.
Mr Weale submits that the income should be £6,559.96 per annum from this apartment not £6,210.15 claimed by Bianca because the expert's report says that the gross rental value is €7,500. The difference can be accounted for by exchange rate values. That is a difference of £349.81 per annum. I am surprised that this point is taken, not least when there is such economic uncertainty in light of the United Kingdom's withdrawal from the European Union. This is a modest difference and as I have already stated I accept the evidence of Bianca on the income that she receives from the Naples flat.
According to the expert the gross income that might be derived from these 4 properties is €1,000 gross per annum. Bianca's evidence is that she receives no income from these properties. They are described by the expert as being in poor or terrible condition. They are not rented out and I do not know how much it would cost to actually achieve the rental values suggested by the expert. Bianca only owns a 1/6 share in each these properties. Again as I have already stated I accept the evidence of Bianca that no income is derived from these properties.
- 24 Cambridge Park Road
Bianca says that the income from this flat is £11,743 per annum after expenses of £5,657 per annum. Mr Weale submits that it should be £16,000 per annum, so allowing expenses of only £1,400 per annum. Bianca's evidence was that she has to pay service charges of £3,327.62 and £1,079.14 towards a sinking fund. In addition she had to spend £15,000 on works to the flat and had a further bill of £3,000 from the managing agents. I have accepted Bianca's evidence on this and that the income that she receives from this flat is £11,743 per annum.
- 42A Elm Bank Mansions
Mr Holland relied on a schedule of Bianca's income which states that she only receives income of £300 per annum from this flat. Mr Weale submits that this should be £13,200 per annum and is therefore understated by £12,900 per annum. Bianca accepted in evidence that the flat is rented out at £1,300 per month, which equates to £15,600 per annum and that after agency fees the income is approximately £1,100 per month, so £13,200 per annum. In addition Bianca's evidence was that there is a mortgage on this flat and the repayments are £2,851.32 per annum and the service charge is £1,450 per annum. So that brings the income down to £8,898.68 and that is before any maintenance costs are deducted. Whilst Bianca retains the income at present she does not have an entitlement to do so; Federica has a 1/3 interest in the flat. Bianca's evidence was that significant refurbishment works were required to the flat, that at present the rental income was being used to assist with legal fees and that Federica was not in a position to contribute toward the necessary works. Although I consider the stated income to be lower than it should be I have accepted Bianca's factual evidence. I also bear in mind that this exercise is to determine the base figure of Bianca's income to calculate the amount that she should be contributing towards Mattia and Gabriele. As I have already said these are infant children it is difficult to predict their future costs and expenses, the parties have done the best they can in order to seek a lump sum award. It is not however a precise science.
- I therefore find that Bianca's base income for the purposes of calculating her 65% contribution towards Mattia and Gabriele's financial needs to be £63,512.49 per annum and that applying the parties' agreed methodology that equates to £901,639.00.
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;
- There is no claim by Jarnail or any other person.
(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
- Susan will continue to be heavily involved in the care of Jarnail. His financial needs are relevant whether I consider them indirectly under section 3(c), directly under section 3(g) or again indirectly under section 3(6).
- Jarnail is now aged 23 years but will remain dependant on Susan. He is a talented artist and hopes that one day he may be able to sell some of his art. Jesse's father is an artist and has helped Jarnail. There is no evidence before me either way as to whether he will be able to sustain his income and care needs by the sale of artwork alone. After Susan's death he will be reliant on provision from her estate under her will.
- Understandably Susan is concerned about what the future will hold for Jarnail. Susan turned 69 years in May 2018. In evidence she said that her aim was to provide stability for Jarnail. Whilst Malkiat was alive they never separated their finances so both were jointly providing for his financial needs. Whilst Susan does not wish Jesse to effectively put her life on hold for Jarnail she takes some comfort from the fact that Jesse will always look after Jarnail.
- Jarnail has been affected by Malkiat's death, as one would expect. Susan says that he has improved but he frets and worries about what will happen to her. She hopes and wants Jarnail to live independently. He has learnt to drive and passed his test at the end of 2017. With an adapted car he can now drive and therefore gain some further independence. Susan candidly accepted during cross examination that she had considered buying Jarnail his own property but that will await the outcome of this case.
- There is no evidence before me as to Susan's outgoings. Although there is evidence about Jarnail's financial needs. I infer that Susan has sufficient income from Walpole Pharmaceuticals and rental income to meet her needs, those of Jesse (where relevant) and Jarnail's. She estimates that Jarnail has capitalised lifetime needs of £1,789,920 In addition Susan says that he has housing needs and that overall he needs a capital sum of £2,464,920. Mr Holland has calculated Susan's net assets to be £2,652,944. I am unclear whether that includes the balance of the life policies of £245,122.91. He goes on to conclude that she will inherit Malkiat's estate, which as at 21 November 2016 was £3,371,034.
- Susan lives in 4 Walpole Gardens which is an unencumbered house with 6 bedrooms. It was valued for probate purposes at £3.5 million. Having severed the joint tenancy only 50% of its value falls into Malkiat's estate. Susan accepted in evidence that she may well downsize but no decision has been made yet. As a 50% owner of Walpole Pharmaceuticals, which has been given a value of £1 million, she has an asset worth £500,000 and an income stream from this business. Poplar Court passed to Susan under the doctrine of survivorship and had a probate value of £600,000. Susan accepts in evidence that value has increased to £650,000 and there is an outstanding mortgage of approximately £210,000. In addition she has a modest Scottish Widows pension fund. Certain insurance policies paid out on Malkiat's death and of those the sum of £254,122.91 was in a NatWest bank account as at 3 July 2017. Her other bank accounts have relatively modest amounts. In fact in the IHT 400 the sum of £1,001,369 was paid in respect of life insurance and mortgage protection policies and these have fallen outside of the estate.
(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
- Malkiat had obligations and responsibilities both to Mattia and Gabriele and to Jarnail.
- I accept from the evidence that both households enjoyed a high standard of living. Prior to Malkiat's death he had ordered and received delivery of a Maserati, which I infer he was intending to fund from his spread betting activities. The outstanding finance at the date of his death was £84,947.65. Both families enjoyed regular foreign holidays including long haul destinations. It was put to Susan in cross-examination that Malkiat's true income was reflected in the operating profit for Walpole Pharmaceuticals in 2014 which was £214,664. The previous year it had been £127,250. The relevant tax return showed a spike of income to £135,000. This higher figure however can easily be explained by the fact that the accounts were over a 20 month period rather than a 12 month period. It was also put to Susan that in 2013/2014 Malkiat had spent £89,021 on his credit card. Susan accepted that he was not poor. However as she rightly commented he was not spending just his own income but he was spending her income too.
- I infer that the income from Walpole Pharmaceuticals, the rental income, Malkiat's spread betting success and Bianca's own income all supported the running of two households. There is no suggestion in this case that there were any debts.
- I accept Bianca's evidence that Malkiat was paying for the au pair, nursery fees, he was providing her with cash to meet some of the food expenses and that he would give her cash from time to time. He would pay for some of the children's clothing. This is all consistent with Malkiat wishing to provide for his children and indeed his new life with Bianca.
(e) the size and nature of the net estate of the deceased
- The net estate as at 21 November 2016 was £3,371,034.68.
- Malkiat had a 50% interest in Walpole Pharmaceuticals. The business has a full-time store manager, a full-time pre-registered pharmacist, full-time dispenser and a number of part time staff. It was valued for probate purposes at £1,000,000 of which £500,000 forms part of Malkiat's estate. Andrew Morgan of Pinders carried out a valuation of Walpole Pharmaceuticals for probate purposes. Mr Holland sought to undermine this valuation in cross-examination of Susan. I am satisfied that the methodology carried out by the valuer was a conventional one. At page 22 of his report he set out that the current trade assessment had been based on a combination of historical accounts and six months VAT returns to 31 March 2015. He went on to state that the recommended method of valuation of trading businesses is the profits method of valuation, with an appropriate yield/multiplier applied to the assessed Fair Maintainable Operating Profit (FMOP). There was nothing revealed in the cross examination of Susan to cast doubt on this report.
- The estate also includes Malkiat's 50% share in 4 Walpole Gardens and apparently his 50% share in Poplar Court, although the latter passed under the doctrine of survivorship to Susan. In addition Malkiat owned all of the interest in 366 Richmond Road which has a probate value of £1,360,000. That building contains not just Walpole Pharmaceuticals but also residential flats that are rented out.
(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
- This factor does not directly arise although I have already referred to Jarnail's needs and how those impact on Susan's needs.
(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
- The parties have raised the issue of whether Malkiat was reconciled with Susan at the time of his death or cohabiting with Bianca as part of his new family relationship. I have already set out my findings in respect of that.
- Susan also exhibited a text from Bianca sent on 31 May 2015. It read "I am very sorry if I upset you earlier. I have the feeling that, if he was here, he would go back to you. I have the feeling that he has never left you and I am so sorry and angry that I have been so stupid to make this happen. I wish I could forget everything and turn off this unbearable pain". I read nothing more into this than Bianca's anguish. Indeed it undermines Susan's position, which I have not accepted, that Malkiat had reconciled with her before his death. Bianca was a mother facing a future without her partner and the father of her children there to support her emotionally, physically and financially. By this stage Gabriele was not even 1 year old. Bianca explains this text as not wanting to ruin the memory of Malkiat for Susan, notwithstanding her own pain. I accept that evidence.
Section 3(3) the manner in which the applicant was being or in which he might expect to be educated or trained
- Bianca's evidence was that it was Malkiat's firm intention and her shared wish that the children would be privately educated, in day schools. Given their ages, when Malkiat died, Mattia and Gabriele were not yet in education.
- Susan was cross-examined on her own children's education. She explained that Jesse suffers from dyslexia and that is why she was privately educated between 11 and 16 years but then returned to the state system for her sixth form. Jarnail attended private school for 1 year in an infant class. I consider that evidence to be neutral.
- Mattia attends a local state school, St James's Catholic Primary School in Twickenham. It is one of many OFSTED rated outstanding schools in the area. Save for an email from Mattia's school dated 14 December 2016 where it was recorded that Mattia had hit other children that afternoon no other evidence has been put before me from the school. In cross examination Bianca accepted that Mattia was making positive and good progress at his school. It was clear in the manner in which Bianca gave her evidence that she considers that private education will provide her children with the best possible start in life. However that is not the test under the 1975 Act, both as to section 3(3) and the overarching principle that reasonable financial provision is limited to maintenance.
- In support of her case that Mattia intended to privately school the children Bianca relies on a letter from The Mall School dated 25 April 2016 addressed to her which confirms that she had made a request for a prospectus on 17 March 2014. The letter also confirms that Mattia had been offered a place in reception but that appears to have been as a result of Bianca completing a registration form for Mattia, I deduce, shortly before the date of the letter and after Mattia's death. Contrary to Bianca's assertion in her witness statement dated 21 October 2016, paragraph 35, that "the letter makes clear Malkiat and I had both approached the school back in March 2014": it did not.
- I accept on the evidence before me that Malkiat and Bianca discussed private education for Mattia and they may well have had those discussions after the birth of Gabriele. I find that Bianca wishes to educate Mattia and Gabriele in the independent sector. From her evidence I formed the impression that she had set her mind on the boys attending Shrewsbury Lodge even though she no longer works near there and it would be a 16 mile round trip for the boys every day. I find it telling that when cross examined she said that "it is my wish" and that she wished "to give them the best possible future… they have more chance of going on to university and will have a good future". Whilst that is Bianca's belief I do not accept that Mattia and Gabriele will not have the opportunity to go to university if they are sufficiently academic. I have no doubt that Bianca as a highly intelligent professional working woman will push her children to achieve the best that they can, regardless of whether they are educated in the state or private sector.
- I do not accept the evidence from Bianca that Mattia had a firm intention to privately educate the children. Indeed Bianca in evidence candidly admitted that they had not discussed figures. On the income and assets of the parties I accept Mr Weale's submissions that they would have been unable to fund private education for both boys to university level or certainly not without a significant reduction in their living standards.
- I therefore find that there was no expectation that the children would have been educated privately. Furthermore I do not accept that the provision of private education is a reasonable financial provision for the children. I accept Mr Weale's submission and consider that the allowance for school fees in the schedule of dependency should be £0.
- Bianca works a 40 hour week over 4 days. She is a single working mother with no family support in the United Kingdom. I accept her evidence that she returned to work far sooner than planned because of Malkiat's sudden death and for far longer hours. She has two very young children and the life she thought that she had was taken away from her when Malkiat died. She works by way of a shift roster between Tuesday to Friday one week and Wednesday to Saturday the next week. When she works on a Saturday it is 7am to 7pm and she has one Saturday off per month. Bianca's evidence was one of existing at present, no more than that.
- It is with this backdrop that Bianca's concerns about childcare resonant. She described in some detail problems that she has had with consistency of care for the boys. In her statement dated 21 December 2016 she describes that she has had to change au pair four times. By the time that she gave evidence at trial there was a further five changes of au pair. She employs au pairs who are in the United Kingdom, as soon as they have found their feet they tend to move on to someone who will pay more or even return home. She describes an incident when an au pair left Mattia on the bus. He was found and taken to school by the police. One au pair decided that she did not have a connection with the boys and left after one day. Her evidence was clear she must have stability for the boys with the child care. If she is to contribute financially to the amount agreed by the parties she must have consistent, reliable care.
- I accept Bianca's evidence on the need for a professional nanny rather than an ad hoc au pair: this is a maintenance need for the children. Mr Weale sought to chip away at the figures. For example if Bianca needed a professional nanny then they do not need to be a live in, their hours could be reduced when Gabriele goes on to secondary school. When Malkiat was alive they managed with an au pair. The situation now is so very different. What might have been manageable when there were two parents, working and supporting the children, is not the situation now. There needs to be a dose of reality in this case. Bianca is shouldering all of the burden of bringing up the children. If she is to work the hours and earn the income at the level suggested by either party then she must have proper child care for the children. That person will play a significant role in the upbringing of the children.
- To an extent by the parties agreeing that maintenance should be capitalised I am forced to effectively 'crystal ball' gaze. I am simply not prepared to shave off amounts here and there as Susan seeks. I find that the amount sought of £234,234 is justified on the evidence and represents reasonable financial provision for the children. That figure is broadly broken down in an earlier schedule prepared by Bianca which calculated the claim as £267,659.04, which has now been reduced further. Bianca also gave evidence that schooling the boys in the state sector will require more parent input. To an extent she will have more consistency of care by having professional child care support rather than relying on au pairs.
- There was some disagreements in respect of other figures. Susan can be commended for taking a realistic view of those figures at trial and making some further concessions. Where there are discrepancies between the parties and given the young age of the children I am not prepared to chip away at the figures presented by Bianca. She has justified both the figures claimed and the methodology of the calculation. In respect of utilities, council tax, additional school costs, university and past contributions from the estate I accept Bianca's evidence. I find that these represent reasonable financial provision for Mattia and Gabriele as capitalised maintenance.
- In accordance with my findings above the lump sum due to be paid by the estate for Mattia and Gabriele's reasonable financial provision is rounded down slightly, is £386,290.60.
- I sent the draft judgment to the parties for editorial corrections and invited submissions on how the sum for future accommodation should be calculated in light of my findings as to the base figures. I have incorporated my reasoning and the amount in my findings above.
- In addition the following matters were raised:
(a) What is Bianca's income in order to calculate her financial contribution towards her children's maintenance? I have incorporated my reasoning and the amount in my findings above.
(b) Counsel for the Mattia and Gabriele also sought to argue that as the maintenance figure that I awarded is lower than that sought on behalf of Mattia and Gabriele it was open to him to change the methodology used to quantify their claim.
- As I indicated at the outset of this judgment the parties had agreed both the methodology to quantify the claimants' case and that this was a claim where the court should make an award of a lump sum pursuant to section 2(b) of the 1975 Act rather than any other order under section 2(a) and (c) to (e). It was the claimants that formulated their case in this way and the defendant adopted this approach. In Mr Holland's skeleton argument and in his opening speech he specifically referred me to a document entitled Schedule of Dependency Needs; this was the defendant's counter schedule dated 7 December 2017 which incorporated the claimants' schedule of needs dated 9 November 2017 ("the Schedule of Dependency Needs"). Mr Weale in his skeleton argument and opening speech commented that the court will "find this document particularly helpful, as it summarises the parties' current positions". The claimants' open position at trial was that Mattia and Gabriele should receive an award of £848.105.78. This is the figure that was set out in the summary at the end of the Schedule of Dependency Needs. He went on to state that the defendant's open position was £335,680.97; that was plainly wrong. RC's letter dated 7 December 2017 made it clear that by adopting the claimants' methodology the claim equated to -£254,627.82 and this was the figure set out in the summary.
- The claimants' case was presented on the basis of the Schedule of Dependency and more particularly the summary set out the areas of difference between the parties. The methodology was as follows. There were 12 headline maintenance categories. These were totalled at £1,749,744.78, on the claimants' case. Bianca's income of £63,512 was then calculated over an 18 year period with an allowance of 2% compound interest. There was a 65% contribution of Bianca's income totalling £901,639 so that figure was deducted from the total maintenance. That left, on the claimants' case, a sum outstanding of £848,105.78, which Mr Holland argued was to be paid as a lump sum by the estate.
- Both counsel have provided me with supplemental skeleton submissions and made oral submissions. At paragraphs 13 and 14 of Mr Holland's skeleton argument he said that "Bianca's concession that she would contribute 65% of her income or £901,639 was part of an open position which was premised upon a total maintenance need for the children of £1,749,744. It is self-evident that the 65% cannot reasonably be taken in isolation irrespective of the ultimate maintenance figure finally arrived at by the court. If that approach is adopted it leads to a disproportionate financial responsibility falling upon Bianca. It is not therefore open to the court to find that a contribution of 65% was 'an agreed figure' in circumstances where a significant element of the maintenance figure is to be disallowed."
- Mr Weale's response was that the parties had agreed the methodology and that Bianca had made an express concession that she would contribute 65% of her income. Further that counsel for the claimants was effectively seeking to withdraw that concession after trial and it was not open to him to do so.
- Mr Holland took me at length through the material correspondence.
i) RC's letter to MW dated 6 July 2017 enclosed a counter-schedule of dependency needs. That counter-schedule was long and detailed, it set out the defendant's case on Mattia and Gabriele's needs and that their claim when properly analysed amounted to a claim for £1,410,906. It was argued that Bianca should contribute towards the children's expenses and that should be 50% not 0.
ii) MW letter to RC dated 1 September 2017. Query why Bianca should contribute 50% to her children when Malkiat's estate is contributing 100% towards Jarnail's financial needs. At this point MW's position remained that Bianca should make no financial contribution toward her children.
iii) RC letter to MW dated 5 October 2017. Jarnail is being supported by Susan and Malkiat's estate. Mattia and Gabriele's needs on a generous basis are £48,000 per annum of which Malkiat's estate will fund 50%.
iv) MW letter to RC dated 23 October 2017. Bianca accepts, subject to affordability, an equal division of the cost of raising the children is an appropriate starting point.
v) RC letter to Mw dated 26 October 2017. Note that Bianca now confirms equal division is an appropriate starting position but the quantum of the claim remains unclear particularly when that claim now seems to be valued at £2million.
vi) MW email RC dated 29 October 2017 "Please note that the Schedule of Dependency is not a schedule of claim but of total cost."
vii) MW letter to RC dated 9 November 2017. "Please find attached the Schedule of Dependency Needs sitting out the financial costs likely to be incurred in raising Mattia and Gabriele. You will note that a 65% contribution of their mother's net income is proposed which is higher than she would be required to pay in the hypothetical scenario in which she was providing no care at all for the boys under Schedule 1, which would be 50% of her income."
viii) RC letter to MW dated 29 November 2017. "We note that you have now … conceded a 65% contribution to the claimants' needs. We note however that you have confirmed that Bianca is able to contribute 65% of her net income – quantified by you at £63,512 per annum. You calculate the contribution as a fixed sum of £901,639…. You have re-quantified the claim at £848,105.78 after netting off this fixed contribution, but this is based on your client being 100% successfully at trial on all elements …. Based on our analysis of the outgoings and taking into account your client's contribution there is no claim at all".
vix) MW letter to RC dated 1 December 2017. "We find your conclusion that Mattia and Gabriele have no claim at all to be so extraordinary that we will say nothing…"
xx) RC letter to MW dated 4 December 2017. "This is a claim for our client to make a financial contribution to your clients' upbringing, in circumstances when their own mother has already conceded she can make a fixed sum contribution of £901,639. This was your calculation which we have simply deducted from what we consider to be reasonable figures for "maintenance. … Your calculation assumes 100% success on issues such as housing, childcare and school costs which is simply unrealistic in the circumstances bearing in mind the inflated figures".
xxi) WM letter to RC dated 5 December 2017. "We do not propose to rehearse the arguments we will be putting to the Court any further with you in correspondence."
- RC then set out in the Schedule of Dependency their case that Bianca contributes 65% of her net income; which was consistent with the correspondence.
- Mr Holland submitted that in construing the correspondence it was clear that the concession, that Bianca would contribute 65% of her net income to her children's maintenance needs, was only on the basis that the children's maintenance needs were assessed at £1.7 million. I pointed out during oral submission that that is not what the letters said and moreover if the concession was conditional then MW should have said that in their letter dated 9 November 2017 or in response to the letters from RC dated 29 November 2017 and 4 December 2017. Indeed if it was Bianca's case that she would contribute 50%, 51% or even 65% of the maintenance needs of the children rather than a fixed sum from her income, calculated by MW at £901,639, then MW should have set this out in response to RC's letter dated 29 November 2017. Mr Holland responded by submitting that the Schedule of Dependency supported his argument. The children's maintenance needs, on the claimants' case, were said to be £1,749,744.78 and if Bianca contributed £901,639 that equated to 51% of her children's needs. That of course presumed that the court would award all of the maintenance needs sought.
- The claimants' position can simply not be sustained when one goes through the correspondence. MW did not say that the concession was only on the basis that the court awarded Mattia and Gabriele all of the sums claimed. Indeed that could hardly be described as a concession. The fundamental error in this is revealed if a different maintenance figure is used. If the court found that the children's maintenance needs were £1,000,000 then Bianca would contribute 51%, £510,000. As a percentage of her total income of £1,387,137 that would equate to 36%. That would be an entirely arbitrary percentage. I do not consider it open to the claimants to seek to re-open this issue after I have provided the parties with a draft judgment.
- For completeness I have also considered Mr Weale's submission that the claimants were now in effect seeking to withdraw their concession, which was not open to them at this stage. He referred me to the case of Camden London Borough Council v Humphreys  EWCA Civ 24 as setting out points of general application. At first instance the judge quashed the decision of a parking adjudicator who had dismissed H's appeal. The Council who took no part in the proceedings at first instance sought to raise matters on appeal. Lord Justice Beatson at paragraph 29
"There is considerable force in Mr Humphreys' submissions. It is, however, clear from the authorities that, where submissions which could have been made at first instance but were not, if allowing them on appeal would not require further factual findings on areas not covered by the judgment below, and where the point which had not been raised at first instance is a pure question of law, although the appellate court retains a discretion to exclude it, provided three conditions are met, the usual practice of this court is to allow the point to be taken: see Pittalis v Grant  QB 605 and Crane (T/A Indigital Satellite Services) v Sky In-Home Ltd and Another  EWCA Civ 978 at . The three conditions stated by Nourse LJ in Pittalis v Grant are that the other party: (a) has had adequate opportunity to deal with the point; (b) has not acted to his detriment on the faith of the earlier omission to raise it; and, (c) can be adequately protected in costs."
- Whilst this is at a very different procedural stage I accept Mr Weale's submissions that the underlying considerations are applicable here. Mr Holland is not seeking to argue a point of law but rather to re-argue part of his case. MW had ample opportunity to clarify the position several months before the trial commenced. In his opening speech Mr Weale took me through the chronology of the claimants' rather fluctuating stated financial needs before submitting that there had been an important development in that Bianca had expressly acknowledged that 65% of her net income should be deducted from the figure determined to be the children's maintenance needs and there was no suggestion that she had resiled from this. He specifically referred me to the summary to the Schedule of Dependency. This was not challenged. This should have been raised at the outset of the trial, if not earlier, not post draft judgment. Mr Weale has not been given the opportunity to cross-examine Bianca during the trial on this or indeed to make submissions in closing.
- Mr Weale also made submissions about the purpose of providing a draft judgment. He referred me to Lord Hoffman observations in R v Environmental Agency ex parte Edwards  UKHL 22 at paragraph 66, "The purpose of the disclosure of the draft speeches to counsel is to obtain their help in correcting misprints, inadvertent errors of fact or ambiguities of expression. It is not to enable them to reargue the case." Save that I expressly asked counsel to apply the agreed methodology to the findings that I had made on housing needs I entirely agree with that statement.
- It is not open to Mr Holland to re-open matters at this juncture or at all.
Note 1 Referred to in A Francis on Inheritance Act Claims. [Back]
Note 2 Jarnail’s statement dated 29 July 2018, made with the assistance of Carol Raymond, Susan’s cousin. [Back]
Note 3 Bianca’s statement dated 21 December 2016, paragraphs 4 and 6. [Back]
Note 4 Paragraph 9. [Back]
Note 5 Mr Holland’s skeleton argument paragraph 23. [Back]
Note 6 Valuation dated 7 April 2017 from Jardine & Co. [Back]
Note 7 Total sum £1,387,137. [Back]
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