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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch) (02 August 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/1750.html Cite as: [2017] EWHC 1750 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

		Bristol Civil Justice Centre 2 Redcliff Street, Bristol, BS1 6GR
		2 August 2017

HHJ Paul Matthews :

Introductory

1. This is my judgment on a claim arising out of an unfortunate family dispute about a will. The will is that of Barbara Olive Ball, and it was made on 27 May 1992, when she was 57 years old. She was born on 14 April 1935 and died on 8 November 2013, aged 78 years. The testatrix was married to James Sayles Ball, who was born in 1934 and died in about 2004. They had 11 children, including the three claimants and eight of the nine defendants. The ninth defendant is a grandson of the testatrix, the son of the Third Claimant. The first two defendants are the named executors of the will. As such executors, they assert a neutral part in the litigation, though it is fair to say that they have expressed their own personal views as well. But they did not attend or play any part in the trial. Although they made witness statements at an earlier stage, they did not give evidence at trial. Two other defendants, the seventh and the ninth, have not defended the claim, and apparently agree to be bound by any order the court makes or by any agreement that the other parties come to. The substantive defendants are therefore the third to the sixth and the eighth.
2. I will deal with the facts in more detail later, but in very brief summary the case is this. The origins of the split in the family go back to 1991, when the three claimants reported their father to the police for sexually abusing them when they were younger. When the testatrix came to make a will in May 1992 she excluded the claimants from benefit, in essence dividing her estate between her eight remaining children and one of her grandsons. Their father, her husband, was prosecuted in respect of the allegations of sexual abuse, and in fact pleaded guilty at the Crown Court to indecent assault upon the second claimant, and incest and indecent assault upon the third claimant. The Crown Prosecution Service however did not proceed with charges of buggery and indecent assault upon the first claimant, and so no plea was entered to those. There was no formal evidence before me as to the sentence passed in respect of the offences to which the husband of the testatrix pleaded guilty, but I am told that it was a suspended prison sentence. The testatrix lived more than 20 years more, but never changed her will.
3. The present legal procedure raises a number of legal issues. Lawyers will know this, but, for the benefit of the parties involved, I wish to emphasise that the court's role is solely to adjudicate on the legal rights of the parties, that is, according to the rules of law. It is not to settle scores between warring members of the same family, or to decide who (if anyone) has the moral high ground. Indeed, anyone who thought that will be disappointed. I say nothing about such things in this judgment, because it is none of my business.

Procedure

4. After the testatrix died in November 2013, the first claimant lodged a caveat in January 2014, and the fourth defendant entered a warning in June 2014. A few days later the first claimant entered in appearance, challenging the validity of the will on the grounds of lack of testamentary capacity, want of knowledge and approval, and undue influence. It appears that in August 2014 there was a summons in the Family Division of the High Court addressed to the First Claimant to show cause why his caveat should not be discontinued, and probate should not be granted to the executors. I do not know what happened to that.
5. The claim form, of which the copy in the bundle is undated, together with the particulars of claim, dated 5 November 2014, launched a probate claim seeking a determination as to the validity of the will. But the particulars of claim go further than the claim form, and make an alternative claim for reasonable provision under the Inheritance (Provision for Family and Dependents) Act 1975. No point was taken on this by the defendants. An order was subsequently made by District Judge Watkins on 2 July 2015, giving directions to trial. There was a further order on 27 October 2016 by the same judge giving further directions. I held a pre-trial review on 16 June 2017 (adjourned from 9 June 2017).
6. The first and second defendants, as executors, have had the benefit of representation by solicitors since the outset. However, they have remained neutral, and have played no substantive part in the litigation. The claimants originally also were represented by solicitors, but that ceased some time ago. For the purposes of the trial, they have engaged counsel by direct access, Mr Barry Havenhand. The 3^rd to 6^th and eighth defendants are unrepresented, although I have exceptionally permitted Mr Christopher Roebuck, husband of the fourth defendant, to speak for them at the trial and to ask questions on their behalf, with a view to shortening the proceedings. I record here that I consider that it did. I should also say that at the start of the trial I received a medical certificate, giving minimal information beyond saying that the fourth defendant was in hospital as an in-patient, and so unable to attend the trial. As other defendants gave similar evidence that which the fourth defendant was expected to give, and as there was no witness summons issued in this case, her absence has made no difference.
7. At the trial, the claimants advanced their claim under three heads: lack of capacity, undue influence, and the claim under the 1975 Act. Although want of knowledge and approval was mentioned in the statements of case, it was not relied on to any serious extent at the trial, and Mr Havenhand did not press it in his closing submissions. Oral evidence was given by both sides on the first day of the trial. No evidence was given on this day in relation to the financial circumstances of any party, although this would obviously be relevant for the purposes of the 1975 Act claim. After both parties had concluded their evidence, and as already noted, I called attention to this absence. At the start of the second day, Mr Havenhand applied for permission to recall the claimants in order to give evidence of their financial position. After hearing Mr Roebuck I decided, for reasons which I then gave, that I would allow both the claimants, and any defendants who wished, to be recalled for this limited purpose. In the event, all the defendants did so.

The witnesses

8. At the trial, I heard from the following witnesses: the three claimants and the third, fifth, sixth and eighth defendants. There were significant disputes of fact, and I must therefore give my own assessment of the witnesses. I should however preface this by saying that, whereas each of the claimants made a separate witness statement, the defendants made a single joint witness statement. Their evidence was that they all met in person, with the exception of the Eighth Defendant, who lives in Scotland and joined the meeting via Skype, and drafted their statement together. That does not easily explain why the statement is signed and dated 8 December 2015 by the Eighth Defendant, but two days later, 10 December 2015, for the other defendants. The joint statement is unsatisfactory for other reasons, too, such as the failure to distinguish which defendant was the source of which piece of information. I note in passing that the style of the drafting much resembles that of the Facebook post made by the Fifth Defendant on pages 42-43 of the bundle, but I have not seen any example of social media posts by other defendants, and it may of course be just a coincidence.
9. The first witness to give oral evidence was Mr Nigel Ball, the first claimant. He came across as a straightforward witness, but with limited understanding and a short attention span. He was not able to concentrate very well on the questions put to him, and frequently changed his answers as they were explained to him. Whilst I am sure he was trying to assist the court, I am not able to place much reliance on what he said, where it is not corroborated from an independent source.
10. Next there was the second claimant, Debrah Churchward. She was very clear, calm, but controlling. For this reason, I am afraid that I did not feel confident about believing everything she said. Again, I would not be prepared to accept her evidence on an important issue where uncorroborated by other, independent evidence.
11. The third witness was the third claimant, Barbara Briers. Although she began confidently, it quickly became obvious that she had great difficulty remembering anything with any precision. As she herself said, it was such a long time ago. Her evidence accordingly was useful to me only in a background way. I could not place reliance upon it on its own.
12. The third defendant, Sharon Ferry, gave evidence in a rather disconnected way, clearly reluctant to agree anything put to her on behalf of the claimants, even when it was obviously right. She shied away from any hard questions which might expose differences within her "camp". She frequently took refuge in not remembering and not knowing, although I did not always have the sense that in fact she did not remember or did not know.
13. The fifth defendant, Michelle Ball, gave evidence in a very quick and dramatic, even domineering way, coupled with a ready wit, and sometimes tinged with sarcasm. She was the only one of the witnesses that I would describe as passionate. This litigation really mattered to her. Her attachment to the principle that the will of the deceased person was to be respected was palpable. But her manner of giving evidence persuaded me that she was at least telling the truth as she saw it, even if sometimes I consider that she had persuaded herself of the rightness of what she thought.
14. The sixth defendant, Stuart Ball, gave evidence in a clear and straightforward manner. He was the only one of the witnesses before me to bring a degree of objectivity to the proceedings. I am sure he was telling the truth in what he said, although, as he accepted, there were some aspects of this matter where he had no personal knowledge, either because he did not remember the incidents concerned, or because he was not involved. Where his oral evidence conflicts with others, I have usually preferred his version. In saying that I do not mean to accept everything in the joint witness statement which he signed along with others. I do not think that he drafted it. He just went along with it.
15. Lastly, the eighth defendant Mrs Cheryl Monaghan was a forthright and dominant witness. She knew what was what, and, more importantly, knew her own mind. On the whole, I am satisfied that she was telling me what she thought to be the truth, although in some respects I am sure that she had persuaded herself of the correctness of what she said. I took what she said with a pinch of salt.
16. My conclusion on the oral evidence is that, as sometimes happens, I find that I cannot place unquestioned reliance on the evidence of any of the witnesses. The few relevant documents before me accordingly play an abnormally large part in my fact findings,

How civil courts decide

17. Lawyers will know this, but it may help the parties (none of whom is a lawyer) to understand this judgment if I explain a few points about the way in which judges decide civil cases. Where there is an issue in dispute between the parties in a civil case, such as this is, the law places the burden of proving the necessary facts upon one party or the other. As a general rule in English law, the person who asserts something has to prove it: Robins v National Trust Co Ltd [1927] AC 515, 520. On the issues whether the testatrix was acting under pressure from her husband amounting to undue influence, or whether the will fails to make reasonable provision for the claimants, these matters are alleged by the claimants. So they bear the burden of proving them. The defendants do not have to prove a negative. As to the question of testamentary capacity of the testatrix, this is more complex. Ultimately the proponents of the will (the defendants) bear the burden of proving that she had capacity, but only once the issue of incapacity is properly raised. Here the claimants say that the testatrix was mistaken at the time she made her will, and thus had no capacity. So, on that basis, it would be for the defendants to show that she had capacity.
18. The significance of who bears the burden of proof in civil litigation is this. If the persons who bear the burden of proof of a particular matter (here the claimants) satisfy the court, after considering the material that has been placed before the court, that on the balance of probabilities that something happened, then, for the purposes of deciding the case, it did happen. But if those persons do not so satisfy the court, then (for these purposes) it did not happen. Our system of fact-finding is binary. It is either one thing or the other. There is no room for maybe. As I have said, the standard of proof in a civil case is the balance of probabilities, that is, that a thing is more likely to have happened than not. In mathematical terms, more than 50%. It is not scientific certainty at 100%. Nor is it even the criminal standard of "beyond reasonable doubt", even though sometimes (as in this case) there are some criminal elements in what happened.
19. There are another point that I should make about the way the English civil courts reach their decisions. This is that it is for the parties to find and put before the court the material which they think will best help the court and prove their case. The English courts do not investigate of their own motion. It may often be that other relevant material exists elsewhere. But the court does not go and look for it. In civil litigation, the court usually makes its decision only on the basis of the material put before it by the parties.
20. Taken altogether, what all this means is that the decision of the court is not necessarily the objective truth of the matters in issue. Instead, it is what is most likely to have happened, based on the material which the parties have chosen to place before the court. My decision in this case must be seen in that light.

Facts

21. I will not summarise all the evidence given in the witness statements and orally before me. It will have been all too present to the minds of the parties during the hearing. Nevertheless, on the basis of the evidence given and the material placed before me, I find the following facts.
22. As I have said, the testatrix was married to James Sayles Ball, who died in about 2004. They had 11 children, including the three claimants and eight of the nine defendants. The evidence of the defendants, and also of the Third Claimant, was that the testatrix was strong minded, and it was very difficult to change her mind once it was made up. I accept the evidence of the defendants that, in her marriage, the testatrix was the dominant personality and told her husband what to do. She took her husband's pay packet from him and gave him spending money. I also find that, after her husband's death in 2004, the testatrix had little or no benefit from his estate. She continued to look after herself, and to run her house on her own, doing her shopping, making business decisions and indeed driving until she suffered a stroke in 2011.
23. In the years before 1991, the testatrix became aware that three of her children, the three claimants, had complained they had been subject to sexual abuse by her husband, their father. There were certainly specific incidents involving Barbara, who had complained of having been abused at age 7 years in the 1960s, and Debra, who reported abuse to her teacher in the 1970s at age 11 years, and at the age of 14 was placed in care. These incidents were not brought to the attention of the police at the time. I find that as a result the testatrix was concerned to ask, and did ask, all her children whether they had allegations to make of a similar nature against their father (there were no others), and thereafter considered the matter over.
24. However, in 1991 there was an incident at a family occasion when the First Claimant and one of his brothers got into an argument, essentially about name-calling of the brother's wife, and the police were called. Following this incident an estrangement occurred between the three claimants and the rest of the family, and the claimants thereafter decided to report the allegations of sexual abuse made against their father in earlier years to the police.
25. As a result, sometime in late 1991, their father, the testatrix's husband, was arrested, the complaints were put to him, and he accepted that at least some of those complaints were true. Following this, the Crown Prosecution Service became involved, and the testatrix's husband was prosecuted. Accordingly, by the time that she made her will in May 1992, I am satisfied that the testatrix accepted that there was some truth in these complaints, at least in relation to the Second and Third Claimants, but that she considered that the complaints as now formulated were exaggerated. She was also annoyed that the complaints had been made public when she thought the matter had been settled. It was in these circumstances that she excluded the three claimants from all benefit under her will.
26. The will was professionally drafted by solicitors. It provided that, if her husband survived her by 28 days, he took everything absolutely. However, if he did not (which was what happened), then her sons Stephen and David (the First and Second Claimants) were appointed executors and the whole of her estate would be divided equally between such of the nine defendants (all her children except for the Ninth Defendant, her grandson) as should survive her and attain the age of 21 years, but with a substitutionary gift in favour of any child or children of a deceased primary beneficiary. A will in similar terms was made by her husband, except of course that the initial gift was to his wife the testatrix if she survived him by 28 days.
27. At the same time, a letter was drafted by the solicitor who had drafted the wills. It was signed by the testatrix and her husband, and dated the same day as the wills. It reads as follows:

"I have been advising Mr Ball and his wife concerning allegations of incest made against him by their daughters Barbara and Debra. The son Nigel also laid allegations of buggery and indecency against Mr Ball but the Crown Prosecution decided not to proceed with these.

In 1988 Debra Ball was involved with false allegations of robbery and rape concerning her husband. When this matter was investigated by the Police various allegations of incest against Barbara and Debra came out. At the time all members of the family agreed that the allegations of incest against Barbara and Debrah would not be pressed and the Police would not be involved in laying charges.

In 1991 there was a family argument at the home in about June or July involving Nigel. As a result of this argument Barbara, Debra and Nigel split from the remainder of the family and pressed very public and damaging charges against Mr Ball. It would appear that at least some of those charges were totally unfounded. For this reason Mr and Mrs Ball have decided not to leave any of their Estate to Barbara, Debra or Nigel."

28. I have not been shown any of the records relating to the criminal proceedings which were brought against Mr Ball, except the Pre-Sentence Report prepared by Dorset Probation Service, and dated 27 October 1992. It does not give the date of the hearing for sentence, although this must have been not long after the report was prepared. As I have said, Mr Ball was apparently given a suspended prison term. The report shows that there were "guilty" pleas entered by Mr Ball in respect of incest and indecent assault against the Third Claimant and in respect of indecent assault against the Second Claimant, but pleas of "not guilty" in respect of "five further charges of incest and indecent assault". I proceed on the basis that the pleas were made not long before the report, and therefore after the will had been made in May. Paragraph 1 says:

"The Defendant admitted to incest and indecent assault on his eldest daughter, and indecent assault against a younger one; both the girls were said to be over 13 years when the incidents took place."

29. So far as concerns the testatrix, paragraph 4 of the report says:

"Intellectually, in view of the Guilty Pleas, Mrs Ball has had to accept that the assaults took place, but emotionally she finds it most difficult. She tends to allay doubts by believing that the passage of time has caused the daughters to exaggerate their experiences. [ … ] She remains supportive of her husband, and places much value on what she believes to have been and still is, a mutually settled and stable relationship. The undertones that the father was sexually abusing his daughter Debrah, surfaced in about 1978, but the atmosphere returned to "normal" after the intervention of Social Services. Matters surfaced again in 1986 when the eldest daughter spoke on the subject to her doctor, and Mrs Ball was informed. [ … ] Following another dormant period, the matter finally erupted in 1991 when the Police were involved. The Defendant and his wife emphasised that during the last two times both the daughters and one particular son had personal marital difficulties. In their opinion the Defendant's offences were used to excuse their own outbursts and predicaments, although no explanation why their problems should take this course, was made."

30. The question arises whether, when the testatrix made her will, she was labouring under any significant misapprehension or mistake. In particular, did she believe in her husband's innocence when in fact he was guilty? There are a number of possible scenarios, because each of the two halves of that question has a number of possibilities. As to the first half, she may have thought he was entirely innocent, innocent in part and guilty in part, or entirely guilty. As to the second half, he may in fact have been entirely innocent, innocent in part and guilty in part, or entirely guilty. To complicate matters, the testatrix might have thought that, whether or not the allegations were true, whether in whole or in part, they were exaggerated by the complainants.
31. In the claimants' skeleton argument, the matter is put this way:

"[The testatrix]'s mental state was impaired in the sense that she was misled as to crucial facts by [her husband], and she would not have reached those conclusions had she not been misled. Her state of mind was such that her capacity was lacking, because of the serious misapprehension under which she was labouring."

I add that the claimants both before the trial and at the trial accepted that the testatrix was not suffering from any phtsical or mental illness which would have been sufficient to deprive her of testatmentary capacity.

32. In the light of the evidence available to me, and on the balance of probabilities, I find that, at the time of making her will in May 1992, the testatrix knew that three of her children (now the claimants) had in 1991 complained to the police of sexual abuse of them by her husband in earlier years, and that he had admitted some of this to the police, but not all of it. I find that (a) she was put out by the fact that the claimants had reported their father to the police, and (b) she considered that in any event the claimants had exaggerated their complaints. What happened subsequently in the criminal proceedings did not falsify her beliefs. Her husband was convicted on his own guilty pleas of some of the charges against him, and other charges were not proceeded with by the Crown Prosecution Service. I do not accept that he misled the testatrix. The Pre-Sentence Report does not prove that he did. On the evidence I am satisfied that at the time of making her will she was not labouring under any significant mistake at all as to the guilt of her husband.
33. The claimants also argue that

"The Pre Sentence Report (34-36) at para 4, makes it clear that, even after conviction, [the testatrix] was not convinced of [her husband]'s guilt. It follows that in May 1992 she must have believed more strongly in his innocence."

I do not agree that the conclusion follows from the premise. Her belief may have been just the same earlier. Moreover, I do not accept that the Pre-Sentence Report makes clear what the claimants say. It says that the testatrix "had to accept" the truth of (at least some of) the allegations, even though she found it difficult. That is a long way from being "not convinced" of his guilt.

34. I also find on the evidence before me that the testatrix did not make her will under the undue influence of her husband. The mere fact that they made wills at the same time with the same solicitors, and in similar terms, does not demonstrate any influence at all. Secondly, and more importantly, the evidence which I have accepted shows that the testatrix was the dominant partner in the marriage, and told her husband what to do, and not the other way round. Although it was undoubtedly a stressful time for the testatrix, I do not consider that the stress made it easier in practice for this husband to put pressure on this wife. In my judgment, it is inherently unlikely in the circumstances that the husband could have managed to pressure his wife into making her will as she in fact did, and there is no positive evidence that he did so.
35. Finally, I also find that the testatrix had almost 20 years after she had made her will and the criminal proceedings came to an end, before her stroke put an end to her active life, in which to change her will if she wished to. But the evidence shows that she did not wish to. On the contrary, during that time she resisted all the attempts that were made (in particular by her son Stephen) to persuade her to make a new will leaving her property to all her children equally. I find that she fobbed him off by saying that he could sort it out after her death.
36. Even if such a statement by her could be interpreted as meaning that she had in fact changed her mind but could not be bothered to go through the formality of changing her will, it would still remain the fact that she did not change it. In English law, there are peculiar formalities attached to making wills and changing them, because of the finality of the act once the testator has died. Thus, a failure to comply with the formalities is usually fatal. A judge cannot treat the will as having been altered, even if satisfied that the testator had changed his or her mind and wanted to do so, unless the formalities required are complied with. Wanting to do something is not the same as doing it.
37. But in any event, I do not interpret the statement that her son Stephen could sort it out after her death as meaning that she agreed to change the devolution of her property after her death. Instead, I find that she was simply trying to stop Stephen from bothering her. In my judgment, she had decided that she was not going to change her will, and that was that.
38. In the light of my findings of fact, set out above, the arguments for the claimants that the testatrix made her will acting under a serious mistake, and therefore had no testamentary capacity, or alternatively that she was acting under the undue influence of her husband, must fail. (I will return to the claim under the 1975 Act later.) But, in case I am wrong in my fact-finding, I go on to consider the position in case those facts were established.

Testamentary capacity

General

39. The first point is the question of testamentary capacity. Mr Havenhand for the claimants cited to me para 615 of volume 75 of Halsbury's Laws of England:

"In order that a testator may make a valid will it is essential that he should understand the nature of the act and its effect, be able to appreciate the claims to which he ought to give effect and understand the extent of the property of which he is disposing. Thus the intellectual understanding required for testamentary capacity is somewhat different from that required for ordinary contracts, since it includes, for example, appreciation of the claims of possible beneficiaries. [ … ] The burden of establishing testamentary capacity is on the person propounding the will."

40. For the propositions in the first sentence, the well-known authority of Banks v Goodfellow (1870) LR 5 QB 549 is cited. In that case, Cockburn CJ said (at 576):

"It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made".

41. But this does not mean that the law requires a perfectly balanced mind. Nor does it mean that a testator who is capricious or spiteful or mean cannot make a will. In principle, and subject only to the jurisdiction conferred upon the court by the 1975 Act, a testator with testamentary capacity and free from undue influence is entitled to leave his property to whomsoever he wishes. For the sake of completeness, I record that, as the will in this case was made before the coming into force of the Mental Capacity Act 2005, it is clear that that Act has no effect on the test for testamentary capacity: see Gorjat v Gorjat [2010] EWHC 1537 (Ch).

Mistake

42. In relation to the argument based on lack of capacity, the claimants accepted that the testatrix when she made her will was not suffering from any physical or mental illness that would have taken away capacity to make a will. Instead, they argued that she was suffering from such a serious mistake as to remove her testamentary capacity. They relied on a number of decisions. These included Re Beaney [1978] 2 All ER 595, Walters v Smee [2008] EWHC 2029 (Ch) and Key v Key [2010] EWHC 408 (Ch). The first of these is simply a decision that a voluntary gift during life of the only asset of any value in the donor's estate required at least the same level of understanding on the part of the donor as was required for testamentary capacity, ie to make a will.
43. The claimants further relied on Walters v Smee [2008] EWHC 2029 (Ch) as a case where a testatrix suffering from dementia had reached false conclusions about the conduct of persons she had omitted from her will, and would not have reached those conclusions but for her impaired mental state. HHJ Purle QC said:

"119. It will thus be seen that in acting as she did, Mrs Latimer was motivated by factors which were the product largely (if not wholly) of misapprehensions. These misapprehensions were the result of her dementia and the effect of it upon her cognitive faculties. In short, she reached false conclusions concerning the Walters' behaviour, which led to her disillusionment with them at the time of the will. These false conclusions were ones which I find she would not have reached but for her impaired mental state.

120. In those circumstances, it seems to me that she lacked testamentary capacity to make the will which she did in October 2004. It follows that I should pronounce against that will and pronounce in favour of the earlier Will; that is to say, the 1998 will. I do so.

121. There are two other points that I should mention.

122. The first is that I was referred to Boughton & Marston v Knight & Others (1873) LR 3 P & D 63, in support of the proposition that, before I can find on the basis of a delusion, I must be satisfied that no man in possession of his senses could have believed what it was that Mrs Latimer believed. The answer that has to be given, when one asks the question could such a man have believed that, has to be: I cannot understand it; that is to say, cannot understand how anyone could have reached that view.

123. I doubt very much whether that is the test that applies when there is medical evidence explaining the effect of a condition such as dementia when ultimately the question that has to be asked is: was the mental impairment such as significantly to undermine the deceased's proper appreciation of the calls upon his or her bounty? It is possible to conceive of cases where the impact upon the deceased's cognitive powers may be highly significant without the deceased crossing the boundary of reaching conclusions which no reasonable person could have reached. The test in Boughton & Marston is applicable when there is no supportive medical evidence of the kind that there is in this case explaining how it is that the cognitive faculties of a testator can be impaired in consequence of a recognised medical condition."

44. It is clear from these passages that the judge in that case is looking first and foremost at the question of lack of capacity, and not of the question of misapprehension or mistake. As he puts it, the misapprehensions were the result of the dementia, and the dementia took away the capacity. He then speaks briefly about the case where there are just mistakes but no medical evidence, in referring to Boughton v Knight. He says that the court "must be satisfied that no man in possession of his senses could have believed what it was that [the testatrix] believed". In other words, that the mistakes are such that they must be the product of insanity. In my judgment this decision does not assist the claimants in a case such as the present, where it is accepted that the testatrix was not suffering from any mental or physical illness which would have affected her testamentary capacity. On the claimants' case, she merely made a mistake.
45. A further case relied on by the claimants was Key v Key [2010] EWHC 408 (Ch). Here a testator aged 89 years made a new will leaving the bulk of his estate to be divided between his two daughters, in contrast to the previous will, by which the bulk of his estate was (subject to life interests in favour of his wife) to be divided between his two sons. He made the will just one week after the death of his wife, by which he was "devastated". The experts on both sides were of opinion that bereavement can give rise to symptoms equivalent to those caused by depression, and may lead to an increased suggestibility in the mind of the patient.
46. The judge said this:

"The factors weighing against a conclusion that Mr Key had testamentary capacity are as follows. First, the preponderance (in terms of reliability) of the evidence about his behaviour between the date of his wife's death and the making of the 2006 Will is, as I have explained in detail, probative of a conclusion that Mr Key was indeed devastated by his bereavement. It was in my judgment a severe affective disorder, perhaps sufficient on its own to have deprived him of testamentary capacity, but probably sufficient in combination with his mild pre-existing cognitive impairment. In that respect, I agree with Professor Jacoby that the cognitive impairment was probably insufficient on its own to deprive Mr Key of testamentary capacity, despite the developing short-term memory loss from which he was already suffering."

47. Briggs J concluded:

"114. In summary therefore the combination of Dr Hughes' expert evidence, coupled with my inability to accept the detail of the evidence of Mr Cadge [the solicitor attending the testator] upon which both Prof Jacoby's opinion and more generally the defendant's whole case was heavily dependent, together with the preponderant weight of the evidence suggesting that Mr Key was devastated, rather than merely upset, by his wife's death, leads me to the conclusion that, in the words of Erskine J in Harwood v Baker (supra) at page 297, Mr Key was 'incompetent to the exertion required' for the purpose of making an important decision as to the disposition of his property upon his death".

48. Mr Havenhand submitted that if a party being placed in a situation of severe stress lost capacity to make a will, then so too could a wife whose husband was accused of serious offences of sexual abuse of which she believed him to be innocent. I reject this submission. For one thing, I have found the facts to be otherwise. For a second, it ignores the other circumstances of the case, such as the great age of the testator. More importantly, it ignores the fact that the judge found in that case that the testator was suffering from what he called "a severe affective disorder". Whatever mistake may be, on its own it is not a severe affective disorder. Nor, in my judgment, does the mere fact of making a mistake whilst suffering from stress cause a loss of testamentary capacity. Either the stress is such as to cause such a loss or it does not. The mistake is or may be a symptom of the pre-existing condition. It is not itself the cause of loss of capacity.
49. Lastly on this part of the case, the claimants relied on McCabe v McCabe [2015] All ER (D) 248, [2015] EWHC 1591 (Ch). I was shown a short published summary of the case, although after reserving judgment I also briefly looked at the full transcript available online. The first will made by the testatrix, in 2007, divided her property equally between her two sons, the claimant and the defendant. Her second will was made in 2011, just over a month before she died at the age of 82, and gave everything to the claimant. The second will had followed a request by the defendant to the police to investigate the finances of the testatrix, on the basis that the claimant was suspected of embezzlement. The testatrix was distressed by this, and had told the defendant that she no longer wished to see him. After the testatrix died, the defendant entered a caveat at the probate registry. The claimant sought probate of the 2011 will in solemn form and the vacation of the caveat.
50. The deputy judge, Jeremy Cousins QC, said:

"278. In all the circumstances, I conclude that Mrs McCabe decided to disinherit Timothy because she believed that he had initiated, without her agreement or authority, a police investigation into her affairs and finances which brought Stephen within its reach, and made allegations in respect of him which suggested that he had misappropriated her money. This was not a delusion or a confabulation. Her belief was justified by what had happened. An investigation had been commenced, with Stephen as 'the potential suspect', in which potential criminal offences were to be investigated, and Stephen's arrest was contemplated. Timothy had instigated it, and she had not agreed to it."

51. Accordingly, this decision is of no assistance to the claimants on the effect of mistake and capacity to make a will. In some respects, indeed, it bears a similarity to the present case, where the testatrix decided to cut out of her will the three of her children who had made allegations of sexual abuse against her husband, although she was well aware at the time of making the will that her husband accepted the truth of at least some of the allegations although not of others.

Re Belliss

52. I also came across a further decision relevant to the effect of mistake on testamentary capacity after the first day of the trial was over. It is that of Lord Merivale, P, in the case of Re Belliss (1929) 141 LT 245. I provided copies to both sides at the start of the second day, and both sides were able to make submissions to me on it. Not long before her death, a woman aged 93 years made a will stating that she had for some years given to one of her two daughters more financial assistance than to the other, and that she now wished to put provision for her two daughters on in an equal footing. She therefore now provided to a greater extent the other of her two daughters. However, she was mistaken in her belief as to what she had done in the past, and far from equalising her provision for them, had now favoured one considerably more than the other.
53. The judge said this (at 246, column 2):

"Having regard to the nicety of the considerations which arise when mistake is said to amount to delusion, and when mistake so described is relied upon as evidence of mental and soundness testamentary incapacity, it is necessary here to consider closely the actions of the testatrix, the position of the parties, and the events dealt with in the explanatory clause."

54. The judge continued (at 247, column 1-2):

"The case against the will of 1927 was presented under two heads. It was contended that the testatrix was actuated in the whole transaction by an unfounded belief amounting to a delusion. It was also argued that the evidence showed a failure of memory in the testatrix in the very matter out of which her decision to make a new will arose, namely, her determination that her daughters and their respective families should be equally benefited by dispositions. The testatrix, it is said, was proved beyond all question to have acted under a grievous mistake as to the relative amounts of the monetary benefits the daughters, respectively, had derived from their parents."

55. Next, the judge laid down this important principle (at 248, column 1):

"The question, again, is not whether the will is avoided by a mistake of fact. Mere mistake of fact as to persons or property would not stand in the way of probate. Even in the jurisdiction of this court in equity mistakes of fact can only be depended on to a limited extent as a ground for rectification or modification of acts intentionally and definitely done. The crucial subjects of enquiry in the case of these: did the testatrix make her will of 1927 revoking her will of 1922 under a supposition that the reapportionment made by the later will was required to restore equality, and was this supposition an insane delusion upon which her testamentary action in 1927 proceeded or an illusory belief of such a character as, having regard to the facts of the case must be held to displace the prima facie proofs of testamentary capacity?"

56. The judge then referred to a number of authorities, including Bankes v Goodfellow. He concluded in this way (249 column 2 - 250 column 1):

"Looking at the facts as a whole, it appears to me to be clear that in the summer of 1927 there sprang up in the mind of the testatrix an entirely illusory belief to the effect of the statement she made to Miss Woolridge [a witness], and that this illusory belief supplied the main motive for the decision of the testatrix to call in Mr Gocher [the solicitor] and with his help to make the new will. Further, I am satisfied that the memory of the testatrix had so failed by this time that she could no longer call to mind the facts of her past actions towards her daughters so as to displace illusory notions and beliefs. I must find, then, that the testatrix had not in or after July 1927 the sound memory which in testamentary matters is essential to a disposing mind and understanding. I therefore propound against the will and codicils of 1927 and 1928."

57. In my judgment, this case makes clear that mistake does not by itself operate to invalidate a will. What it can do, however, is to provide a basis upon which to say in an appropriate case that the testator either is suffering from an insane delusion or does not possess a sufficiently sound memory for the purposes of making a will (compare the case of Walters v Smee, where the judge discusses Boughton v Knight, at [36]-[37] above). But a mere mistake without more is not enough. In the present case, I am quite satisfied that, even if the testatrix had been acting in the mistaken belief that her husband was innocent of the charges against him, when in fact he was guilty, that would not be enough by itself to show that either she was suffering from an insane delusion, or that she did not have sufficient memory for the purposes of making a will. In the event, of course, I have in fact found that she was not suffering from such a mistake at that time. Strictly, therefore, the point does not arise.
58. As I have already said, the statements of case for the claimants sought to argue that there was a want of knowledge and approval on the part of the testatrix. However, by the time of the hearing Mr Havenhand for the claimants accepted that this was not open to him on the evidence. In the McCabe case there was, in addition to the plea of testamentary incapacity, also a plea of want of knowledge and approval. As to that, the deputy judge said:

"It was common ground between counsel that the modern approach to determining the issue of knowledge and approval is for the court to consider as a single question whether the testatrix understood what she was doing and its effect so that the will concerned represents her testamentary intentions…"

59. Of course I accept this, but in circumstances where the claimants are no longer asserting that there was a want of knowledge and approval, it is of little relevance to this case. Certainly, it does not help me in relation to the question of testamentary capacity.

Undue influence

60. I turn now to the question of undue influence. In probate cases, undue influence must always be proved. It is never presumed. The claimants relied significantly on paragraph 4 in the Pre-Sentence Report, and on the fact that the testatrix chose to remove three of her children from benefit under her will. I have set out the main parts of that paragraph at [27] above. However I have also found on the evidence that the testatrix did not make her will under the undue influence of her husband: see at [30] above.
61. In my judgment, the testatrix having capacity to make a will was entitled to decide not to benefit the three claimants under it. In circumstances where they were the cause of her husband having to face serious and potentially life-changing criminal proceedings, albeit justified at least in part, that was not irrational, even though I accept that not every parent would have behaved in the same way, and some people might criticise her for doing so. But it was her property to dispose of, and her right to choose. The choice she made does not demonstrate that she must have been acting under undue influence. The other evidence shows that her husband was not putting pressure on her, even though I have no doubt that she took his wishes, or supposed wishes, into account in deciding what to do. Therefore this part of the claim also fails.

Claim under the 1975 Act

The law

62. Lastly, I turn to the question of the claim under the 1975 Act. So far as material, the Act provides as follows:

"1(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons –

[ … ]

(c) a child of the deceased;

[ … ]

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

[ … ]

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

[ … ]

(b) in the case of any other application made by virtue of subsection (1 above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

[ … ]

2(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 affected by his will or the law relating to intestacy, or the combination of his will and that law is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders –

[there follows a list of possible orders, including for periodical payments, and lump sum, the transfer of property, the settlement of property, the acquisition of property for the benefit of the applicant out of the estate, and various powers relating to pre-existing trusts and settlements].

3(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 for 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.

[ … ]

(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) [ … ] 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 [ … ]"

63. The claimants are all children of the deceased, and hence qualify under section 1(1)(c) of the Act. It is clear that that provision includes adult children: see eg Re Coventry [1980] Ch 461. But that does not mean, of course, that adult children, or indeed any children, have a right to a share of the deceased's estate. This is not a system of forced heirship or compulsory inheritance, such as is common in civil law systems, as for example in France or Germany or Italy. In our system we start with the principle of testamentary freedom, that is, that every person who makes a will may leave his or her property to whomsoever he or she pleases.
64. As Oliver J said in Re Coventry [1980] Ch 461, 474-75,

"It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court's powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession."

Thus a child, or indeed any other claimant under the 1975 Act, has only the right to make an application to the court for an order, which will be made only at the discretion of the court, although based on the criteria set out in the Act.

65. The question for the court in this case is whether the will made by the testatrix in 1992 makes such financial provision as it would be reasonable in all the circumstances of the case for these claimants to receive for their maintenance, having regard to the matters set out in section 3(1) of the Act. In my judgment, the words I have italicised constitute an important limitation on the court's power under the Act. The Act does not confer power on the court to make provision for the applicant's advancement in life.
66. From the papers I have seen, it appears that the value of the estate is modest, about £157,000. Mr Havenhand pointed out that, divided 9 ways (as the will says) it comes to about £17,444 each. But (as he told me) divided 12 ways, it comes to about £13,083 each. That is a difference of about £4,361. Of course, ordering an even division between all the claimants and all the defendants would be only one possible kind of order that the court could make. There are many others. The estate being modest, the amount of 'maintenance' that could be provided out of it for any of the three claimants would be small. If in total it produced as much as £5000 in annual income I would be surprised. Split three ways (that is, allowing nothing to any of the defendants), for example, such income would make very little difference to the standard of living of any of the claimants, particularly after tax.
67. It is clear, when one considers what is reasonable provision for the maintenance of a 'child', that the position of an adult child living apart from parents, and in his or her own home, and earning his or her own living, perhaps with a spouse or partner and children of his or her own, is very different from that of a minor child living with the deceased and maintained wholly or partly by her at the time of her death. Somewhere between those two on a wide spectrum lies the position of an adult child still living with the deceased at the time of her death and perhaps looking after the deceased, thereby being unable to earn his or her own living, or not so much, but on the other hand perhaps having board and lodging without payment, or at a reduced cost. However, this case concerns the first of the three possibilities I have posited, and we do not need to consider the others.

Financial circumstances

68. I have already referred to the fact that no evidence in relation to the financial circumstances of the claimants, or indeed any of the defendants, had been elicited from them during the first day of the trial. As I have said, I allowed an application at the start of the second day to recall all the witnesses for this purpose. Given that no documentary disclosure has been given in relation to these issues, and given that it was all done rather "on the hoof", the weight of the further oral evidence is plainly less than it might have been. But for what it is worth I summarise it here.
69. Nigel Ball, the first claimant, told me he was a self-employed double-glazer, earning variable amounts from one year to another, but amounting on average to about £25,000 per annum after tax. He owned his own house, a semi detached three-bedroom house in Swindon, but had found he could not afford it and it was going to be put on the market. He had an interest only mortgage, on which he owed £130-150,000. He had savings of approximately £5000. He lived with his partner but had no dependent children.
70. Debra Churchward, the second claimant, told me she was a frontline worker in the community working with patients suffering from dementia and stroke. She earned approximately £11,500 per annum. She owned her own house in which there was a mortgage of £80,000. This was an ex-council house, a three-bedroom semi-detached house in Doncaster, worth about £155,000. Although her daughter did not live with her, she was a single parent and so she (the second claimant) helped her and her three children.
71. Barbara Briers, the third claimant, was not working. Her husband was drawing the state pension plus a top up of £46 per week. She was not yet old enough for her own state pension. Her three sons lived at home, of which one (who did not work) has a daughter. The other two sons are in work and pay £90 per week between them for their accommodation and an evening meal. She has no savings. She rents her home at a cost of £127 per week.
72. Sharon Ferry, the third defendant rents a council house at £450 per calendar month, without any rent rebate or allowance. She is a healthcare assistant team leader in dementia, working three days a week, totalling 33 hours. She takes home about £1000 per calendar month after tax. She has no savings. She is in arrears with her council tax. She does not claim benefits. She has no dependents.
73. Michelle Ball, the fourth defendant, rents a three bedroomed house from a housing association at a full rent of £500 per calendar month. She also pays council tax at £157 per calendar month. She works 30 hours per week in a school for autistic children, for which she receives £949 per calendar month after tax. She also receives £49 per calendar month for child tax credits in respect of her nine year old son she is a single parent with no savings. She has some modest debts. Her daughter lives with her, and pays her £45 per week including all her food, washing and so on, She does not receive any maintenance payments in respect of herself or her son though it had been ordered. She said she was owed about £38,000 in maintenance arrears.
74. Stuart Ball, the sixth defendant, lives in a two-bedroom terraced council house for which he pays a full rent of £495 per calendar month. He has two children. His occupation is as a delivery man, but he is not working at present because of an accident at work (which was his fault) for which he needs a back operation. He is currently receiving half pay, that is £565 per calendar month after tax. He is liable for full council tax, although his partner is able to pay that, she is a carer employed by a care home, but is currently on maternity leave with their newborn child. He is paying off debts incurred during his previous relationship in respect of utilities. He has no savings, and will not receive any compensation in respect of his back injury.
75. Cheryl Monaghan, the eighth defendant, lives in a three bedroomed semi-detached council house, for which she pays a full rent of £266 per calendar month. She has no dependents except for looking after her grandchild at the weekends. She works as a cleaner 16 to 20 hours a week for £600-£700 per calendar month before tax. She pays full council tax of £126 every four weeks. Water is included in that. For electricity and gas she pays about £80 per calendar month each. She has no savings, and debts amounting to about £3000 for council tax.

Arguments

76. All three of the claimants are 'emancipated'. They have long since been living apart from their parents, in their own homes, and with their own partners or spouses and children. The claimants rely in particular on the factors in section 3(1)(d) and (g) of the Act, namely "any obligations and responsibilities which the deceased had towards any applicant for an order", and "any other matter, including the conduct of … any other person, which in the circumstances of the case the court may consider relevant". They say that the testatrix owed an obligation to them because she cut them out of her will as a result of their having accused her husband, their father, of serious offences against them, some of which at least he admitted to.
77. Mr Havenhand, on their behalf, relies on two cases in particular, Espinosa v Bourke [1998] All ER (D) 748, CA, and Marks v Shafier [2001] All ER (D) 193 (Jul). He did not refer me to the most recent authority on claims by adult children under the Act, Ilott v The Blue Cross [2017] UKSC 17. But I looked at it after the hearing, and asked each side whether it wished to comment on it in relation to the facts of this case. Mr Roebuck did not at first, though subsequently he made a few comments. For my part, I do not consider that Espinosa v Bourke adds anything to Ilott. According to the summary of the decision provided to me by Mr Havenhand, Marks v Shafier says that sexual abuse of the applicant if established is a matter to be taken into account in deciding whether the balance came down in his or her favour.
78. As to Ilott v The Blue Cross, Mr Havenhand in a helpful written submission drew attention to paragraphs 17, 20, 46 and 47 in particular. In those paragraphs, Lord Hughes (with whom the other justices agree) says a number of important things, including the following:

"17. Nevertheless the reasonableness of the deceased's decisions are undoubtedly capable of being a factor for consideration within section 3(1)(g), and sometimes section 3(1)(d). Moreover, there may not always be a significant difference in outcome between applying the correct test contained in the Act, and asking the wrong question whether the deceased acted reasonably. If the will does not make reasonable financial provision for the claimant, it may often be because the deceased acted unreasonably in failing to make it. For this reason it is very easy to slip into the error of applying the wrong test. It is necessary for courts to be alert to the danger, because the two tests will by no means invariably arrive at the same answer. [ … ]

20. [ … ] There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J [in Re Coventry] did not impose one. He meant no more, but no less, than that in the case of a claimant adult son well capable of living independently, something more than the qualifying relationship is needed to found a claim, and that in the case before him the additional something could only be a moral claim. That will be true of a number of cases. Clearly, the presence or absence of a moral claim will often be at the centre of the decision under the 1975 Act. [ … ]

46. More critically, the order under appeal would give little if any weight to the quarter of a century of estrangement or to the testator's very clear wishes. The Court of Appeal indeed offered the view (at para 51) that these factors counted for little, and that Mrs Ilott's lack of expectation of any benefit from the estate was likewise of little weight, in part because the charities had no expectation of benefit either. Those observations should be treated with caution. The claim of the charities was not on a par with that of Mrs Ilott. True, it was not based on personal need, but charities depend heavily on testamentary bequests for their work, which is by definition of public benefit and in many cases will be for demonstrably humanitarian purposes. More fundamentally, these charities were the chosen beneficiaries of the deceased. They did not have to justify a claim on the basis of need under the 1975 Act, as Mrs Ilott necessarily had to do. The observation, at para 61 of the Court of Appeal judgment, cited above, that, because the charities had no needs to plead, they were not prejudiced by an increased award to Mrs Ilott is, with great respect, also erroneous; their benefit was reduced by any such award. That may be the right outcome in a particular case, but it cannot be ignored that an award under the Act is at the expense of those whom the testator intended to benefit.

47. [ … ] Lastly, for the reasons adverted to above, it was not correct that so long and complete an estrangement was of little weight. The Court of Appeal suggested that this was so because (a) the claimant had not wished for the estrangement, (b) she had made a success of her life as a mother and home-maker and (c) it might well be that the estrangement was not really a matter of fault on either side, thus simply, in effect, a sad fact of family life. [ … ] These matters of conduct were not irrelevant, but care must be taken to avoid making awards under the 1975 Act primarily rewards for good behaviour on the part of the claimant or penalties for bad on the part of the deceased."

79. Mr Havenhand also referred to the decision of HHJ Saffman in Nahajec v Fowle [2017] EWMisc 11 (CC), a decision of the County Court at Leeds. The judge appears to have paid considerable attention to the qualities of the deceased, the father of the claimant. He was apparently stubborn and intransigent, which was "not her fault". He awarded £30,000 to the claimant from an estate of £265,000.

Discussion

80. As I understand the law, especially after Ilott v The Blue Cross [2017] UKSC 17, the ultimate question is not whether the deceased acted reasonably, but whether the will makes reasonable financial provision for the maintenance of the applicant, even though the reasonableness of the deceased's decisions is capable of being taken into account. And what is reasonable is to be judged at least in part by reference to the needs of the applicant. Obviously these should not be ascertained by looking at what is necessary merely to stay alive. Rather the court should consider what is appropriate for his or her circumstances, here including station in life.
81. Even so, 'need' so ascertained is not enough by itself to justify the court going on to make an order. It is not automatic. There must be something else. It may be a moral claim, or it may be some other circumstance. It may be that sexual abuse by the deceased could be that something else. I do not need so to decide, as that is not this case, though, as Etherton J said in Marks v Shafier, it also is undoubtedly to be taken into account. However, in my view sexual abuse by someone other than the deceased does not have the same impact, even though it too may be taken into account if thought relevant.
82. Estrangement may also be taken into account. But, as Lord Hughes said, this jurisdiction is not about creating "rewards for good behaviour on the part of the claimant or penalties for bad on the part of the deceased". And I do not agree that, as Mr Havenhand says, "there can be no question that the fault did not lie on the part of the claimants". For what it is worth, I record here that I am not at all satisfied that the cause of the estrangement lay with the testatrix. She thought that the claimants had exaggerated the abuse by their father, and also had reported it to the police after it was dealt with, instead of keeping it privately within the family. I do not think that I should stigmatise that as bad behaviour as at the time at which it happened. It is certainly not right to judge the matter by the standards of today, if they are different. The testatrix reacted as she thought right at the time. The 1975 Act jurisdiction is not some kind of statutory court of appeal from the judgments of parents in bringing up their children.
83. I have looked at the decision of Judge Saffman in Nahejec v Fowle. It is apparent that the facts were very different. The estate was larger, the number of children much smaller, the father gave everything to a friend who was not a family member, there was no cataclysmic event tearing the family apart, such as the allegations of sexual abuse in the present case, and the financial circumstances of the parties were different. In the circumstances I derive no particular benefit from it. Instead I turn to consider the particular circumstances of the present case.
84. In the present case, the (limited) evidence shows that none of the applicants is well off. Each of them is 'getting by', albeit in modest circumstances. Two of them have their own incomes from working. The third has a husband with a pension and two sons who pay for their keep, although a third (with a child) does not. She also will qualify for a state pension in due course. One of them has savings; none has any significant debts. All of the claimants could well do with a lump sum to advance them in life, but in my judgment none of them could be described as 'below the breadline' or in need of further income for their reasonable maintenance. On the evidence, the estate left by the deceased was not derived from assets left to her by her husband. I do not consider that the conduct of the deceased in reacting to their complaining to the police about her husband, their father, by making a will that did not benefit them creates any kind of moral obligation on her to compensate them by leaving a share of her estate to them. Nor does the abuse of them by her husband. She did not authorise or instigate or encourage such abuse.
85. When one considers the position of the defendants from whom I had evidence (which admittedly is not all of them), it is clear that the claimants are certainly no worse off than the witness-defendants, and on some measures better off. For example, two of the three claimants own their own homes, even though one told me he could not afford it any longer and was going to put it on the market; none of them has significant debts, though several of the witness-defendants do; one of them has savings, though none of the witness-defendants does.
86. To sum up. This is a small estate, where the claims of the claimants based on their needs for maintenance are not significantly different from (indeed, may be less than) those of the actual beneficiaries of the estate, and the size of the estate means that it could hardly make a significant difference anyway. In my judgment, the deceased herself has done nothing to create any moral obligation towards the claimants. There are no other special circumstances that I can see. The result overall is that I am not persuaded on the evidence that the will of the testatrix has failed to make reasonable financial provision for the claimants' maintenance. Accordingly, this part of the claim fails also.

Conclusion

87. For the reasons given, all the separate parts of this claim fail, and I must dismiss it.