Fielden & Anor v Cunliffe

A court determining reasonable financial provision for a surviving spouse must apply the statutory factors and explain the balancing exercise which produces the award. The divorce comparison is a cross-check, but it creates no presumption of equal division.

The duration of the marriage remains important. Death after a short marriage may carry less weight than an early divorce because the spouse entered the marriage expecting an indefinite commitment. Even so, brevity and limited contribution may justify provision below equality and affect reasonable housing and income requirements. A capitalised income calculation may provide useful guidance, but it remains an approximate tool.

The executors appealed against an order under section 1(1)(a) of the Inheritance (Provision for Family and Dependants) Act 1975 awarding the deceased’s widow £800,000 from a net estate valued at approximately £1.4 million. The executors accepted that the will, which made the widow one of several discretionary beneficiaries, failed to make reasonable financial provision.

The marriage had lasted just over one year. The widow had also received assets by survivorship. His Honour Judge Howarth identified the statutory considerations but did not explain how they produced an award of £800,000. The central issues were whether that failure and his treatment of equality, the short marriage and housing needs vitiated the award, and what provision the Court of Appeal should substitute.

1. Appeal allowed. The £800,000 award was set aside and a lump sum of £600,000 substituted. As £200,000 had already been paid, the remaining £400,000 was payable within three months, coinciding with the widow vacating the former matrimonial home.
2. Per Wall LJ, with whom Mummery and Moore-Bick LJJ agreed, the proper exercise of a judicial discretion requires an explanation of the balancing exercise. The judge must identify the relevant factors and explain the weight given to them. The unexplained selection of £800,000 therefore vitiated the decision. The award was also outside the reasonable ambit of the discretion because the judge misunderstood the law and failed properly to assess the short marriage and the widow’s reasonable housing needs.
3. The approach in White v White could be adapted to a surviving spouse’s claim under the Inheritance (Provision for Family and Dependants) Act 1975, particularly because section 3(2) requires comparison with the provision reasonably expected on divorce. Equality is only a cross-check. It is neither a presumption nor necessarily a useful measure of reasonable testamentary provision.
4. The short duration of a marriage is relevant but must be assessed in context. A widow entered the marriage expecting an indefinite commitment, potentially including long-term care of her husband. Premature termination by death may therefore make duration less critical than on divorce. Nevertheless, brevity and limited contribution may provide powerful reasons for departing from equality and may limit reasonable housing and income provision.
5. The widow required suitable housing and lifetime financial security, but reasonable provision did not entitle her to remain in the former matrimonial home or maintain the standard enjoyed during the marriage. A notional £200,000 housing fund and £400,000 income fund were appropriate. Her own capital, earning capacity and assets received by survivorship were relevant resources.
6. A Duxbury calculation was a useful, though artificial, guide to the capital required for index-linked lifetime income. A separate Besterman cushion was inappropriate because it risked duplication. The resulting £600,000 award was at the top of the permissible bracket and was amply justified despite departing from equality.

1. Court of Appeal (Civil Division): By [2005] EWCA Civ 1508, allowed the executors’ appeal, set aside the £800,000 award and substituted £600,000.
2. High Court, Chancery Division, Manchester District Registry: His Honour Judge Howarth ordered payment of an £800,000 lump sum from the estate. He refused permission to appeal. No citation is stated.