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FAMILY PROVISION: Baynes v Hedger [2009] EWCA Civ 374

Date:14 MAY 2009

(Court of Appeal; Chancellor of High Court, Longmore and Goldring LJJ; 7 May 2009)

For over 40 years the deceased, a successful sculptor, had had an intimate relationship with a female friend, taking a considerable role in raising the friend's five children. She had purchased a home for the friend, later set up a trust fund for her. Although the two lived together for some years, for the 30 year prior to the death, the two had been living in different households. The friend now suffered from Alzheimer's disease. The deceased had been very generous to all the friend's children, but had provided one of the children, her goddaughter, with considerable financial support. The goddaughter, an actress, had a history of incurring large debts; these had been paid off by the deceased on a number of occasions, but some years before she died the deceased informed the goddaughter that she was not willing to make any further large gifts. Nonetheless, subsequently the deceased helped the goddaughter with mortgage payments, and made some gifts of cash. In her will the deceased left her own home, an historic building, to the Landmark Trust, a specific small legacy to the goddaughter, and her residuary estate to the female friend for life, with the remainder to the other four children, explicitly excluding the goddaughter on the basis that she had 'already benefited'. The female friend and the goddaughter claimed against the estate under the Inheritance (Family and Dependants) Act 1975, on the ground that the will did not make reasonable provision for them. The judge concluded that the female friend had failed to establish that she had lived with the deceased in the same household as her civil partner and that neither the trust fund, nor the outright gift of a house some 30 years before the death, could be said to amount to maintenance of the female friend immediately before death, as the extent of a trust fund was a clear indication of the extent of the responsibility assumed by the settlor towards the beneficiary. The judge went on to decide that the goddaughter, who had received £171,000 from the deceased in the 4 years preceding the death, was entitled to bring a claim under s 1(1)(e), as a person who was being partly maintained by the deceased immediately before her death, but dismissed the claim on the basis that the goddaughter had not established that the will failed to make reasonable financial provision for her. The judge noted that although the goddaughter was likely to be made bankrupt unless she received a substantial award from the estate, the goddaughter's financial plight was largely of her own making, and commented that her conduct towards the deceased in demanding money was not conduct that should be rewarded. He also stated that a sum awarded to pay someone's debts did not fall within the concept of maintenance unless it enabled the person to derive a future income, or the debts represented living expenses since the death. The goddaughter appealed.

The appeal was dismissed. The goddaughter could not make a claim under the Inheritance (Family and Dependants) Act 1975 unless she could bring herself within s 1(1)(e), as a person who was being maintained either wholly or partly by the deceased immediately before the death. When considering an application under s 1(1)(e), the court was required, by s 3(4), to have regard to the extent to which and the basis upon which the deceased had assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased had discharged that responsibility. In deciding that the goddaughter was eligible to bring a claim, the judge had failed to consider the question whether the deceased had assumed responsibility for the goddaughter's maintenance. In fact the judge had gone on to decide that the deceased had not assumed such responsibility when considering whether the deceased had made reasonable provision for the goddaughter in her will. The judge should have recognised that, given his conclusion on this point, the goddaughter was not in fact eligible to bring a claim under s 1(1)(e), or at all, and he should have dismissed her claim on that basis. In any event there had been no failure to make reasonable financial provision. In the ordinary case it would be surprising if conduct alone could exclude an otherwise meritorious claim, but it had not been the goddaughter's conduct alone that had led the judge to his conclusion.