Analysis
The claimant, Mr Higgins, brought a claim for reasonable provision out of the estate of the deceased, under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), in his capacity as a person who, although not a child of the deceased, was treated by the deceased as a child of the family, within the meaning of s1(1)(d) of the 1975 Act. Mr Higgins’ mother had married the deceased when he was aged nine, and he had continued to reside with the deceased after his mother and the deceased divorced, at which time the deceased had been granted custody of Mr Higgins and his sister, Heather. Mr Higgins had resided with the deceased both until he came of age and also at several points during his adult life. The deceased, who had no children of his own, treated Mr Higgins and Heather as his children. No party disputed that Mr Higgins had standing to bring the claim as someone whom the deceased treated as a child of the family. The second to seventh defendants were the cousins of the deceased, and the beneficiaries of his estate on intestacy. The first defendant was the former personal representative of the estate of the deceased.
Mr Higgins claimed provision in the form of the discharge of some long-standing debts of his (of £36,488.32 in value), a £10,000-£20,000 sum as a ‘cushion’ in respect of other liabilities, and a further capitalised sum reflecting what was said to be the monthly deficit in his income as against his outgoings, over a period of ten years (this amounting to a sum of £68,067.52). Thus Mr Higgins claimed up to £125,448.84 as the principal provision for his maintenance.
Mr Higgins was financing his bringing of the claim under a conditional fee agreement (CFA), pursuant to which he would potentially be liable to pay his solicitors a ‘success fee’ representing an uplift of 100% on their costs. For this reason, in addition to the amounts already indicated, he sought an additional amount in respect of his fee liability.
Mr Higgins argued that such provision ought to be made for him because, among other things, he was in a position of financial need, given the financial difficulties imposed on his wife’s wedding photography business by virtue of the coronavirus pandemic, and the various debts he had accrued. He maintained that his close relationship with the deceased, the financial support with which the deceased had provided him over the years, and the deceased’s stated desire to provide for Mr Higgins through his will, demonstrated the required ‘something more’ referred to in the case law as necessary for a successful claim. He noted that only one of the defendants had any need for support, and that the deceased had no obligations to them. He also maintained that he was unable to carry out physical labour owing to injuries he had sustained, and that he would have difficulty in working in a number of non-physical jobs, owing to the fact that he now lived with his family in France, and suffered from dyslexia which caused him difficulty in the use of the French language. As to legal fees, he contended that it was appropriate to consider a claimant’s potential liability under the CFA as a factor relevant to that claimant’s needs, and thus to increase the award by reference to a success fee that a claimant is bound to pay. The court was bound by the ruling on this point in Re H (deceased) [2020].
The defendants opposed the order sought because, among other things, the evidence of the alleged financial need was very unsatisfactory, being generally unsupported by evidence aside from the word of Mr Higgins. Moreover, the debts referred to were historic and there was no evidence that they were being pursued, with it being possible that at least some of them were statute barred. Further, it had not been made out that there was ‘something more’ that would justify the making of an order in this case. The deceased’s testamentary wishes were irrelevant to the matter at hand, namely whether the financial provision made for Mr Higgins was reasonable. Furthermore, one of the defendants had very significant financial needs which could not be overlooked. As to Mr Higgins’s claims concerning his various disabilities, nothing fundamentally supported his position on this point, given that there clearly were occupations which he could pursue. As to the legal fees, it would be contrary to (or would at very least undermine the policy underlying) s58A of the Courts and Legal Services Act 1990 (CALSA), which prohibited the inclusion in costs orders of any provision requiring a party to make any payment in respect of a success fee under a CFA, were the award made to be increased at all to reflect the fee liability. Such provision could not properly be included in an award under the 1975 Act, under which the court could only provide for maintenance.
Held:
The provision made for Mr Higgins by the rules relating to intestacy was not reasonable and the court would accordingly make an order in his favour, for a principal sum of £40,800, being raised to £55,000 to account for the fee liability under the CFA. Notwithstanding some suggestion to the contrary by counsel for Mr Higgins, the need for maintenance was a prerequisite for the making of an order in Mr Higgins’ favour. Such a need was made out.
Notwithstanding the inadequacies of the evidence, Mr Higgins was a reliable witness whose evidence as to his financial situation was broadly to be accepted. There was ‘something more’ in this case to justify the making of provision for Mr Higgins, in that the deceased provided financial assistance to Mr Higgins when the need arose, and had promised to provide Mr Higgins with £10,000 to enable him to acquire photographic equipment to allow him to join his wife’s photography business. Moreover the deceased and Mr Higgins were close to one another, whereas the deceased was not close with the defendants.
Although the deceased’s expressed testamentary intentions were of limited value, since they did not centrally affect the question of whether reasonable provision for maintenance had been made, the fact that the deceased had wanted to make provision for Mr Higgins might point to a perceived moral obligation. Only one of the defendant beneficiaries had any need for maintenance, and that defendant had only a 1/7 interest on intestacy and in any event stood to receive a significant interest even notwithstanding the award to be made to Mr Higgins by the judge. Therefore the rules relating to intestacy did not make reasonable financial provision for Mr Higgins and the court would exercise its power under the 1975 Act to do so.
However, Mr Higgins was not entitled under the Act to as extensive a provision as he sought. In particular, among other things, it was unlikely that some of his historic debts would be pursued, so only a small fraction of the value of those debts should be added to the award on their account, and the period for which the monthly shortfall in Mr Higgins’ finances should be made good by the award should be limited to only two years. As to the liability for legal fees under the CFA, the fee liability was relevant to Mr Higgins’s needs for the purposes of the 1975 Act since that liability would be bound to affect Mr Higgins’ ability to support himself, but the policy considerations behind s58A(6) CALSA fell within the category of ‘any other matter’ which the court is entitled to, and should take into account in deciding on how to exercise its powers. As such the award would be increased to reflect the fee liability, subject to the submission of appropriate evidence demonstrating that the success fee under the CFA had become payable.
JUDGMENT: HHJ MARK CAWSON QC: Introduction [1] This is a claim brought by the Claimant, Barrie Richard Marc Higgins (Mr Higgins), under the Inheritance (Provision for Family and Dependents) Act 1975 (the 1975 Act). Mr Higgins brings the claim as a person falling within s1(1)(d) of the 1975 Act, that is as a person who, …Continue reading "Higgins v Morgan & ors [2022] WTLR 153"