Robinson v Fernsby & Anor

A reserved judgment supplied in draft to the parties has not been given or made. Before formal hand-down, a judge who concludes that the draft is wrong must correct it. Material alteration should nevertheless occur only for strong reasons, and the draft procedure is not an invitation for parties to reopen contentious issues.

For an adult child’s claim under the Inheritance (Provision for Family and Dependants) Act 1975, an identified maintenance shortfall does not itself establish that reasonable financial provision has not been made. The court must assess all statutory circumstances and decide objectively whether it was unreasonable for the will not to make greater provision for maintenance.

The claimant, an adult daughter of the deceased, appealed against Blackburne J’s dismissal of her claim for further provision from her mother’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. The will, after allowing for substantial lifetime advances authorised by the Court of Protection, divided the residue broadly equally between the claimant and her teenage nephew, Duncan.

Blackburne J initially circulated a draft judgment awarding the claimant £60,000. Following written submissions and his own doubts about the analysis, he withdrew that draft before hand-down and issued a final judgment dismissing the claim. The appeal concerned both the judge’s power to alter the draft and whether the final assessment of reasonable financial provision was wrong.

1. Appeal dismissed unanimously. May LJ gave the principal judgment. Mance LJ and Peter Gibson LJ agreed.

2. A draft reserved judgment circulated under the practice for correcting typographical and obvious errors is not a judgment that has been given. A judge has jurisdiction to alter it before formal hand-down. Although material changes should be exceptional and parties should not use the procedure to reopen substance, a judge who has become persuaded that the draft is wrong is obliged not to hand it down. The judge was entitled to determine the matter on written submissions without a further oral hearing.

3. Under the Inheritance (Provision for Family and Dependants) Act 1975, the court must first decide whether the testamentary disposition failed to make reasonable financial provision for the applicant and, only if it did, determine the appropriate order. For a non-spouse applicant, provision is confined to reasonable maintenance. Applying Re Coventry deceased [1984] Ch 461, the decisive question was not whether a greater provision would have been reasonable, nor merely whether the claimant had a calculated income shortfall. It was whether, objectively and in all the circumstances, it was unreasonable for the will not to provide more for her maintenance.

4. The judge had considered the statutory factors, including the claimant’s needs, her substantial prior advances and investment choices, the uncertain but potentially serious needs of Duncan, and the deceased’s fluctuating expressed wishes. The claimant’s reduced resources resulted substantially from her own expenditure and handling of the lifetime advance. The judge was entitled to conclude that an equal division did not fail to make reasonable financial provision. The deceased’s wishes and the claimant’s modest shortfall did not compel a contrary result.

5. An appellate court should not interfere with that discretionary balancing exercise unless the judge erred in law, considered an irrelevant matter, omitted a relevant matter, or was plainly wrong. None of those errors was established.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal: [2003] EWCA Civ 1820 .
• Chancery Division — Blackburne J dismissed the claimant’s claim for further provision under the Inheritance (Provision for Family and Dependants) Act 1975 on 23 January 2003. The citation is not stated in the judgment.