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Iqbal v Ahmed [2011] EWCA Civ 900

Appeal against order for financial provision in favour of the deceased’s widow under the Inheritance (Provision for Family and Dependants) Act 1975. Consideration of the appropriateness of an award of a half beneficial interest in the former matrimonial home as against a life interest. Appeal dismissed.

A widow had made a claim against her deceased husband's estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.  The executor of the estate was the son of the deceased and the claimant's stepson.

The case was heard by HHJ Bidder QC who determined that in contrast to the will, Mrs Iqbal should receive a half beneficial share outright in relation to the former matrimonial home.  This was in contrast to the provision in the deceased's will for her to be given the right to occupy the property plus £8,000 but which required her to carry out the repairs (with an estimated cost of £30,000) herself.

Permission to appeal was granted to the stepson on the question of whether the judge failed to consider whether 'reasonable financial provision' to the widow could have been made by granting her a life interest in the property and any proceeds of sale thereof rather than half of the beneficial interest in the property.  There was no appeal against the finding that the provision in the will was not such as to make 'reasonable financial provision' for the widow.

The thrust of the appeal was that the judge erred in principle in granting the widow a one-half beneficial interest because she had no financial need for such an interest.  All that she required was a secure life interest, extending to any substitute property, and an absolute interest in the residuary estate.  It was argued for the appellant that the judge had failed to deploy the very limited resources in the estate to their best effect.  It was wrong to deploy some of these resources to outsiders, as would happen on the widow's death when her beneficial interest would pass to her relatives.

Secondly, based on the tables in the Intestate Succession (Interest and Capitalisation) (Amendment) Order, the value of a life interest to the widow, aged 60, equated to £65,000 which was comfortably in excess of half of the estate.  Thirdly, it was argued that the judge had failed to take into account the fact that the property had once been the son's home.

The Court of Appeal unanimously dismissed the appeal.  In a case such as this where the estate is relatively small, the judge had to grapple with the need to make reasonable financial provision for the widow.  His options were limited and the outcome must be determined by practical considerations relating to the actual sums involved, rather than a more abstract debate about the relative attractions of capital provision as against a life interest.

The advantage of the judge's solution was that a share of the capital gave the widow a 'capital cushion' to cope with whatever factual eventualities unfolded in the future.   A life interest coupled with the residuary estate would not be adequate to fund the repairs to the property and allow the widow to maintain herself. 

Thirdly, the marriage had been a long one which made a capital share of the former matrimonial home appropriate, particularly as this is the most likely way to secure reasonable financial provision for her.  In addition, given the deeply hostile relationship between the two parties, this solution was the only way to potentially achieve a clean break (if the property were sold).  The capitalised figure for the life interest that had been put forward on behalf of the appellant was a theoretical figure rather than a practical reality.

Summary by Sally Gore, Barrister, 14 Gray's Inn Square
_________________________

Neutral Citation Number: [2011] EWCA Civ 900
Case No: 2010/2225
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
HHJ BIDDER QC
9CF06265

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2011
Before :
LORD JUSTICE PILL
LORD JUSTICE JACKSON
and
LORD JUSTICE GROSS
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Between :

MRS MUSSARAT BANO IQBAL Appellant
 
- and - 

MR ZULFKAR AHMED  Respondent

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Mr Giles Harrap (instructed by Rubin Lewis O'Brien) for the Appellant
Mr Michael Brace (instructed by Hugh James Solicitors) for the Respondent

Hearing dates: 30th June 2011
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Judgment
 
LORD JUSTICE GROSS:
INTRODUCTION
1. This litigation concerns the Claimant's claim against her deceased husband's estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act").  The Defendant is the executor of the estate.  The Defendant is the son of the deceased and the Claimant's stepson.  I shall refer to the Claimant as "the widow", the deceased as "the husband" or "the deceased" as appropriate and the Defendant as "the son". 

2. By his judgment dated 4th August, 2010 ("the judgment"), HHJ Bidder QC found in favour of the widow, as will be recounted in more detail below. 

3. The effect of the judgment was, with respect, helpfully encapsulated by Arden LJ in her judgment, dated 3rd March, 2011, when considering the son's renewed application for permission to appeal, as follows:

" 1. This is a renewed application by Mr. Ahmed for permission to appeal the decision of HHJ Bidder QC on an application under…..[the Act]….that the respondent (that is the appellant's stepmother) should, in substitution for the sum of £8,000 and the right to occupy the former matrimonial home, receive out of her late husband's will firstly the right to occupy the home for life and half the proceeds of sale (the other half being held by Mr. Ahmed), the whole of the residuary estate and the agreement of the appellant to pay half the insurance and the structural repairs of the property.

2.  The way the order is drafted is as follows.

'The property (Penarth Road, Cardiff) shall be held by Mr Jatinder Hans and the claimant, Mrs…Iqbal, upon trust for the claimant [that is Mrs Iqbal] and the Defendant, Mr …Ahmed, as beneficial tenants in common in equal shares upon the statutory trusts of land declared by the Trusts of Land and Appointment of Trustees Act 1996 and upon the following terms and conditions.'

….The principal point is that in contrast to the will Mrs Iqbal was to receive a half beneficial share outright in relation to the former matrimonial home. The total estate comprised the house, valued at approximately £115,000, and a residuary estate of some £28,000.  There also had to be taken into account a loan of £21,500, which was treated as a gift by the deceased and which was made by the deceased to Mr. Ahmed on Mr. Ahmed needing a home.  The house needed repair of some £30,000. Under the will the claimant had to repair the house and had only a life interest in the property. She herself only had savings of some £3,000 and she lived on state support and pocket money from the deceased of some £5 a week. "

4. In the event, Arden LJ granted the son permission to appeal, limited as follows:

" permission to appeal is granted on the 'reasonable financial provision' point only, that is to say whether the judge failed to consider or adequately to consider whether reasonable financial provision would have been made by granting the respondent a life interest in the property and any proceeds of sale thereof, and otherwise making the same orders as for the payment of repairs and insurance and as to the residuary estate as are contained in his order, and whether the judge's order should therefore be set aside by this Court"

5. Arden LJ adjourned to this hearing a further application by the son, contesting the Judge's order that he should be removed as a trustee. 

6. It may be noted:

i) The son does not pursue an appeal against the Judge's dismissal of his claims based upon constructive trust and proprietary estoppel.
ii) It is not in dispute on this appeal that the deceased did not make proper financial provision for the widow.

7. Accordingly and leaving to one side the position of the son as trustee, the appeal is confined to the question of whether the Judge erred in his view of what was required by way of reasonable financial provision for the widow – and, in particular, whether such reasonable financial provision required her to be given a one half beneficial interest in the property.  In considering this question, it is to be underlined that we are hearing an appeal; we should only interfere if persuaded that the Judge was wrong (see further, below).

8. The underlying facts are essentially common ground and may be summarised as follows:

i) The deceased died on the 25th March, 2009.

ii) He was survived by the widow, to whom he had been married for 22 years and the son (by an earlier marriage).  It may be noted that the widow was born on the 22nd October, 1949 and is now 61.

iii) The deceased left a will dated 28th January, 2009 ("the will").  By cl. 2 of the will he appointed the son his sole executor and, by cl. 3 thereof, he appointed the son and a Mr. Hans (a friend) as his trustees.

iv) By cl. 5, he gave the widow a right to occupy the matrimonial home at Penarth Road, Grangetown, Cardiff ("the property") rent free but subject to a number of conditions which, in  practical terms, rendered that occupation precarious in the event of a dispute with the trustees (the son and Mr. Hans).  It may be noted that the widow was to be liable for "payment of outgoings insurance repair decoration and other matters as the Property Trustees shall from time to time consider reasonable" (cl. 6b of the will).

v) Subject to the widow's right of occupation, the property was given to the son absolutely as was the residuary estate.

vi) Cl.10 of the will contained a "Non-Provision Declaration". The deceased declared that he had not made any greater provision for the deceased and referred to the "Memorandum of Wishes" accompanying the will.  The Memorandum of Wishes stated that, by his will, the deceased had chosen to exclude the widow, because:
"…..she has not been a loving and caring wife before and during my illness. She also acts compulsively and repetitively and gives me verbal abuse and physical abuse."

vii) Probate of the will was granted to the son on the 12th June, 2009.  The grant certified that the net value of the estate did not exceed £178,000. The main asset in the estate is the property.

9. The Court of Appeal sat in Cardiff to hear this appeal. 

THE JUDGMENT
10. In his careful judgment, the Judge made a number of important fact findings (at [70] and following):

i) The approximate current market value of the property was £115,000.

ii) The property had been maintained to a poor standard; significant repair was now required, at a cost in excess of £30,000.

iii) The best estimate of the residuary estate, before payment of the £8,000 bequest to the widow, was about £28,000.

iv) From the time she came to Wales, the widow was entirely dependent financially on the deceased.  For instance, when she received income support, the deceased collected it and gave her "pocket money" and, for a time, contributions towards housekeeping.  The widow had, nonetheless, accumulated some £3,000 in savings; she had done some work as a seamstress but was otherwise dependent on Employment Support Allowance of £64 per week.

v) The Judge described the position of the widow in these terms:

" She has been diagnosed as suffering from depression. Her grasp of English is poor. She has no history of employment in the UK. She has virtually no earning capacity."

Later in the judgment, the Judge observed that the widow spoke very poor English, did not appear to be well integrated into "the wider society around her" and had been very substantially financially dependent on her husband during her marriage. All that said, it was not likely that the widow would now return to live in Pakistan.

vi) With regard to the criticisms made by the deceased of the widow, set out in the Memorandum of Wishes (see above), the Judge was prepared to accept that she may not have been an easy person to live with and may have irritated the deceased, particularly in his last years when ill. Further, she was somewhat eccentric and inclined to "compulsive and repetitive behaviour".  That said, the Judge accepted the widow's evidence that she looked after and cared for the deceased when he was ill; throughout a long marriage, she had kept house and cooked for him. Her conduct was largely irrelevant.

vii) So far as concerns the son, the deceased had given him a loan of £21,500, converted to a gift in his lifetime. In the event, the Judge found that the son was now comfortably off, had a reasonable business, a number of properties and a home.  He was a man of substantial resources and no immediate needs. Overall, he was "an independent, determined and reasonably successful business man"; there was no evidence that his needs would increase. 

11. Coming to his conclusions, the Judge first held that the disposition of the deceased's estate effected by his will was not such as to make reasonable financial provision for the widow. The right to occupy the house was "as precarious as it could be"; the bequest to the widow, even when added to her savings, was not "nearly sufficient to effect the repairs necessary to keep the house in a habitable state having regard to her very low income".  The main need of the widow was for a home; the will did not achieve that in "anything approaching a secure manner".  From this conclusion, as already recorded, there is no appeal.

12.  The Judge next turned to the matters to which he was obliged to have regard under s.3 of the Act (set out below).   Having made, inter alia, the various fact findings to which I have already referred, the Judge expressed his conclusions as follows:

" 100.  I cannot accept that a mere life interest in addition to the small bequest (even a life interest that gives a right to occupation in another house bought from the proceeds of sale and a right to income from the proceeds of sale) is reasonable in these circumstances. The repair works necessary on the house are so extensive that there is a real and substantial risk that if they are not done soon, the house will become uninhabitable.  The claimant simply does not have the necessary capital to fund those repair costs and there is no current obligation on the trustees to fund them. If the house falls further into disrepair and has to be sold the claimant has no capital reserve to put towards a small property, say, a flat or to have capital to help her keep herself in rented accommodation.  She has no share in the ownership of the home to allow her to obtain a secured loan to assist in the works of repair, with the loan and interest paid back out of her very small income……

101. On the other hand, a complete transfer of the property  substantially ignores the testator's wishes and still leaves the claimant without the capital resources even to come close to effecting the repairs to the property. If the house has to be sold, there would be more capital available to her, but still not sufficient in all probability, to provide a home for her having regard to the value of the property and the necessity for costly repairs. "

13. The Judge proceeded to make the orders, as summarised by Arden LJ (see above), expressing himself as follows:   

" In all the circumstances I consider that the appropriate course balancing all the various factors and giving ….due weight to the testator's wishes but reflecting what appears to be the most important of the various factors, namely the needs and resources of the claimant, is to settle the property, giving a full life interest to the claimant, but imposing on the trustees of the will a trust to sell the property, postponed during  the claimant's life or until she agrees to a sale, with the net proceeds of sale being held by the trustees on equal shares for the claimant and the defendant but also ordering that the entire residuary estate ….be transferred to the claimant. She may use that if she wishes, to put the property into as good a state of repair as she can, or she can agree that the property can be sold and put it, with her half share, to provide a capital cushion for her when attempting to obtain some other suitable accommodation.  "

THE RIVAL CASES
14. The principal criticism of the Judge advanced by Mr. Harrap, for the son, was that he erred in principle in awarding the widow a one-half beneficial interest in the property.  The widow had no financial need for such an interest. All that she reasonably required was (in effect) a secure rather than precarious life interest, extending to any substitute property acquired, plus an absolute interest in the residuary estate.  Mr. Harrap developed his submissions under three broad headings. 

i) First, given that the estate comprised very limited resources, the Judge had failed to deploy them to their best effect.  It was wrong to dispose of part of those resources to outsiders, as would happen on the widow's death when her beneficial interest would pass to and benefit her relatives in Pakistan. A life interest would have made for a better tailored order.  The Judge's order had been harsh on the son; double counting was involved in giving the widow both residue and a half share of capital.  It was not for the Court to rewrite testamentary provisions lightly but only to the extent required to make reasonable financial provision for the widow; the Judge had gone beyond that. In any event, giving the widow a half share of the property would be "useless" if the property came to be sold. This Court could and should interfere; the Judge had erred in principle or was plainly wrong in splitting the very limited resources of the estate.

ii) The Judge had failed to appreciate the value of a life interest to a widow of 60 (or 61).  Mr. Harrap (rightly) did not seek to introduce fresh evidence but, by reference to published tables contained in The Intestate Succession (Interest and Capitalisation) (Amendment) Order, SI 2008/3162, he contended that a life interest to the widow would be worth some £65,000; as a cross-check, that revealed that even on an order for a life interest, the widow would receive comfortably in excess of half the estate.   The Judge's order meant that she received something like 72% of the estate.

iii) The Judge had failed to take the history of the property into account.  It had been acquired prior to the husband's second marriage (to the widow) and had, at one time, been the son's home. 

15. For the widow, Mr. Brace submitted that the Judge took into account all the circumstances and factors required by the Act and carried out a proper balancing exercise.   There had been no error of principle.  Mr. Brace emphasised the importance of the matrimonial home in the lengthy marriage between the husband and the widow.  Reasonable financial provision was not confined to such provision as was required for the widow's maintenance or housing needs; but, be that as it may, anything other than a capital provision would not properly meet the widow's housing needs given the limited size of the estate.

"The key point is that as it was the house was not a decent home to meet her needs and capital provision was essential…..The residuary estate was not sufficient for the essential repairs taking into account other capital requirements."

The Judge was right to order that the widow should have a share of the matrimonial property; this would give the widow financial freedom following a long marriage.  Mr. Brace underlined the importance of the "capital cushion" (the Judge's wording), in the event that the widow moved house or rented accommodation.  An order for a life interest, as contemplated by Mr. Harrap, would mean that there could never be a clean break – whereas, on the Judge's order, there could be - in the event that the property was sold.  There had been no error on the part of the Judge entitling this Court to interfere even were we attracted to a different conclusion.

THE LAW
16. Insofar as here relevant, the Act provides as follows:

" 1 Application for financial provision from deceased's estate
(1) Where…..a person dies domiciled in England and Wales and is survived by any of the following persons –

(a) the spouse….of the deceased;
……..

that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will……is not such as to make reasonable financial provision for the applicant.

(2) In this Act 'reasonable financial provision' –

(a) in the case of an application made by virtue of subsection (1)(a) above by the husband or wife of the deceased……means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance….

2 Powers of court to make orders
(1) Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased's estate effected by his will…..is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders –

……
(c) an order for the transfer to the applicant of such properly comprised in that estate as may be so specified;
(d) an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified;
…..

3 Matters to which the court is to have regard in exercising powers under s2
(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…..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;
………
(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.

(2) ……
The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of ….[subsection (1)]…, have regard to –

(a) the age of the applicant and the duration of the marriage….
(b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

In the case of an application by the wife or husband of the deceased, the court shall also……have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce. "

17. Some reference was made to the authorities by both parties.  It is unnecessary to say more than this:

i) It is common ground that on every application under ss. 1 and 2 of the Act, the Court must ask itself two questions. In In re Krubert, decd. [1997] Ch 97, at p.102 D-E, Nourse LJ put the matter this way:

" …first, has reasonable financial provision been made for the applicant; second, if not, what financial provision ought he or she to receive?  But in answering those questions a distinction is to be made between the wife or husband of the deceased and any other applicant. In the latter case the provision referred to is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance. In the former it is such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive whether or not it is required for his or her maintenance. Thus ……in the former case maintenance is not the only, or even the dominant, consideration to be taken into account by the court."

This appeal is only concerned with the second question; it is not in dispute that the first question is to be answered "no".  As explained by Nourse LJ, the answer to the second question in the case of a spouse (as here) is not confined to reasonable financial provision for his or her maintenance.

ii) The question of what is reasonable financial provision for a surviving spouse is necessarily fact specific. In some cases a capital provision may be appropriate; in other cases, such as Krubert (supra), a life interest sufficed.

iii) The observations of Lord Nicholls of Birkenhead (admittedly in a somewhat different context) in Miller v Miller  [2006] UKHL 24; [2006] 2 AC 618, at [22],  underline the importance of the matrimonial home:

" The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. "

Whether or not these dicta constitute a proposition of law does not matter; they are, on any view, of powerful persuasive force.

iv) S. 3(2) of the Act imposes a "statutory cross-check" in proceedings brought by a widow: per Wall LJ (as he then was) in Cunliffe v Fielden [2005] EWCA Civ 1508; [2006] Ch 361, at [20]. Thus the Court is required to have regard to the provision which the applicant might reasonably have expected to receive had the marriage terminated by divorce instead of by the death of the husband.  But too much should not be made of this "cross-check"; as Wall LJ went on to observe in Cunliffe v Fielden, at [21]:

" Caution, however, seems to me necessary when considering the ….cross-check in the context of a case under the 1975 Act. Divorce involves two living former spouses, to each of whom the provisions of section 25(2) of the Matrimonial Causes Act 1973 apply.  In cases under the 1975 Act a deceased spouse who leaves a widow is entitled to bequeath his estate to whomsoever he pleases: his only statutory obligation is to make reasonable financial provision for his widow.  In such a case, depending on the value of the estate, the concept of equality may bear little relation to such provision."

v) Testamentary provisions are to be respected, subject to the need to ensure that reasonable financial provision is made for the applicant.  As Thorpe J (as he then was) observed in Davis v Davis [1993] 1 FLR 54, at pp. 59-60, cited with approval in In re Krubert, decd. (supra), at pp. 104-105:

" …It is not for this court to rewrite the testamentary provisions of deceased persons lightly. …"

vi) Decisions under the Act as to what would constitute reasonable financial provision involve the exercise of judicial discretion; on appeal, this Court should only interfere on well established grounds – for example, if the Judge erred in principle or was plainly wrong.  There is unlikely to be a single "right" figure and an appeal should not be allowed simply because the Court of Appeal, had it heard the case at first instance, might have taken a different view.  See:  In re Krubert, decd. (supra), at p.102; Cunliffe v Fielden (supra), at [105] – [106], per Mummery LJ.

DISCUSSION
18. This is a sad case involving an unhappy family relationship, made worse by the difficulty in which the widow finds herself: she apparently speaks little English, has not integrated in this country and has no means of support other than her (now deceased) spouse.  On the evidence, there is no sensible question of her now returning to Pakistan. Realistically, the only candidates for providing support to the widow are the state or the estate.

19. The central question on the appeal is whether the Judge erred in principle or was plainly wrong in awarding the widow a one-half beneficial interest in the property, rather than confining her to a life interest.  While acknowledging that the award of capital does merit careful scrutiny, for my part, I am not at all persuaded that the Judge was wrong to do so; accordingly, this Court should not interfere with the order he made.  My reasons follow.

20. First, the relatively small size of the estate is the governing reality in the present case.  Constrained by that reality, the Judge had to grapple with the need to make reasonable financial provision for the widow.  His options were indeed limited.   In my judgment, whether the size of the estate lends support to Mr. Harrap's submission that the Judge was wrong to split its limited resources or tells in favour of the Judge's solution, is to be determined by practical considerations relating to the actual sums involved – rather than any more abstract debate about the relative attractions of capital provision as against a life interest.

21. Secondly, to my mind, the primary practical consideration is that the provision of a share in the capital gives the widow a "capital cushion", in the Judge's apt wording, to cope with whatever factual eventualities unfold.   Thus the life interest alternative canvassed by Mr. Harrap, even coupled with the residuary estate, would be demonstrably inadequate for the widow both to fund the repairs which, as was not in dispute, the property requires and to maintain herself.  Put simply, on the figures available to us, the repairs would exhaust the residuary estate.  If all that was available to the widow was the life interest, she would then have nothing to live on.  While it may be – the answer must be speculative – that even with a share in the capital the widow would ultimately be unable to raise funding for the repairs, it is at least a step in the right direction.  Moreover, should it prove impractical to undertake the repairs, as may well be the case, the widow will need to re-locate.  Whether she seeks to purchase a smaller replacement property or, as seems by far the most likely scenario, she rents accommodation, she would need some such cushion.  Absent the Judge's order, she would not have it.  

22. Thirdly, two further factors provide additional justification for the Judge's decision:

i) This was a long marriage. Given the significance of the matrimonial home, as commented upon by Lord Nicholls in Miller v Miller (supra),  the award of a capital share in the property to the widow, in the circumstances of this case, seems to me appropriate – the more especially as it is by this means, if at all, that reasonable financial provision (and hence security) can be made for her. In taking this view, I do not overlook Mr. Harrap's third point, recorded above. However, the importance of this provision to the widow easily outweighs any attachment to the family home enjoyed by the son, arising from the fact that the property had been acquired by the husband before his second marriage and that it had once been his home.  

ii) Given the deeply hostile relationship between widow and son, it is only by making the capital provision which the Judge ordered, that there is the prospect of a clean break – if the property is sold. By contrast, the provision of a life interest would have precluded any such break.

23. Fourthly, as is clear from the authorities, even had I been attracted to a different conclusion from that arrived at by the Judge, it would not, by itself, furnish a ground for interfering with the order he made. The facts of this case did not lend themselves to easy answers. It is important to keep in mind that the Judge conducted the application over a period of days, saw and heard the witnesses and produced a careful reserved judgment, comprehensively weighing the matters contained in s.3 of the Act, to which he was obliged to have regard.  As already indicated, I am not at all persuaded that the Judge erred in principle or was plainly wrong.    

24. Fifthly and for completeness:

i) So far as concerns the value of the life interest, as Pill LJ demonstrated in argument, the figure (assuming its correctness) is theoretical rather than practical.  It would not have given the widow resources either to maintain herself or carry out repairs.

ii) In the course of argument, I canvassed with both parties the possibility of a variant on the theme of Mr. Harrap's proposal – namely, whether either party would be in favour of conferring a (secure) life interest on the widow, transferable to the proceeds of any disposal of the property, plus the residuary estate but placing the entire burden of the insurance and structural repairs on the son (rather than half the burden, as provided for in the Judge's order).  Neither party was attracted to this alternative and, with respect, I can understand why.  But that left as the only options for consideration, Mr. Harrap's life interest alternative or the Judge's order for the provision of a capital share. As between the two and for the reasons already given, I cannot begin to say that the Judge's conclusion was not one he could properly reach.

iii) Given the conclusion to which I have come, no question arises as to restoring the son as a trustee, so no more need be said of that application.

25. Further elaboration is unnecessary. In the circumstances, I would dismiss the appeal.  I do so, not without a measure of understanding for the son's position but fortified by the consideration that the Judge's order involves no re-writing of the deceased's testamentary provisions other than that necessary to secure a reasonable financial provision for the widow.  

LORD JUSTICE JACKSON:
26. I agree.

LORD JUSTICE PILL:
27. I agree.  The question is whether the deceased made reasonable financial provision for the respondent.  By virtue of section 1(2)(a) of the Act, the test is whether there is, for the respondent, such financial provision as it would be reasonable in all the circumstances of the case for a wife to receive, whether or not that provision is required for her maintenance. 

28. Mr. Harrap, for the appellant, submitted that he had made such provision, relying on three points.  First, the deceased had very limited resources.  The judge had not effectively deployed them.  Under the judge's order, the respondent would receive about 72% of the estate, it was submitted.  Secondly, the judge had failed to appreciate the substantial value of the respondent's life interest in the property.  Thirdly, the property had been acquired by the deceased during a previous marriage. 

29. Gross LJ has summarised, at paragraph 10, the findings of the judge.  The respondent is now 61 years old and had been married to the deceased for 20 years before his death.  She had kept house and cooked for him and looked after and cared for him when he was ill.  Her vulnerability and entire financial dependence on the deceased are described.  She has no income apart from state benefits.   

30. The property, title to which is the main issue in the appeal, is valued at about £115,000 but has been maintained to a poor standard and the cost of repairs now required is in excess of £30,000.  That is rather less than the money sum left to the respondent. 

31. The options open to the respondent are, first, to remain in a house in a bad state of repair, and probably too large for her needs, and spend such capital as is available to her on necessary repairs.  The second option would be to sell and buy a smaller, cheaper property.  There was no evidence before the judge of property values in the area.  The third option would be to sell and move into rented accommodation.  If the respondent has a half beneficial share outright, a part of the proceeds of sale will go to her and she will have a "capital cushion", to use the judge's expression, borrowed from earlier cases, to assist her in future years. 

32. I am not persuaded by any of Mr. Harrap's three submissions.  I agree that the available financial resources are limited but their deployment must have regard to the statutory duty.  As Wall LJ stated in Cunliffe v Fielden [2005] EWCA Civ 1508; [2006] Ch 361, at paragraph 21, "the concept of equality may bear little relation to such provision", that is the provision required by the statutory obligation. 

33. As to the second submission, the valuation of the respondent's life interest by reference to the tables in Intestate Succession (Interest and Capitalisation) (Amendment) Order, SI 2008/3162 is of no practical significance in present circumstances.  The figure is notional and only on a sale would a capital sum accrue to the respondent. 

34. As to the third submission, the marriage lasted for over 20 years and, given the limited sums involved and the findings of fact, the prior acquisition of the property by the deceased can have no bearing on the reasonable financial position to which the respondent is entitled. 

35. If the respondent remains in the property for the rest of her life, it makes no difference to her financial position whether she has a beneficial share outright.  In the circumstances, that situation appears unlikely.  On a sale, whether she then attempts to rent or to repurchase, some capital cushion is likely to be necessary.  A capital cushion is likely to be required to cover her remaining years, which may be considerable in number.  Reasonable financial provision, in my judgment, in the circumstances requires the presence of a capital cushion which only a share in the title will give her.

36. The judge was entitled to order the provision he did.  For those reasons, and the reasons given by Gross LJ, I agree that the appeal should be dismissed.