Lewis v Warner

Under the Inheritance (Provision for Family and Dependents) Act 1975, maintenance for an applicant other than a spouse or civil partner is assessed objectively. It is not confined to subsistence and may include housing which relieves living expenditure. An applicant’s ability to buy alternative accommodation, lack of expectation of inheritance and absence of a moral claim do not necessarily defeat the application.

The court must balance the applicant’s needs against the beneficiary’s interests and the statutory factors. Section 2(1)(c) permits a transfer of estate property for full value where the particular property is itself needed for maintenance. Such an order is unusual but is not outside the court’s jurisdiction.

Audrey Blackwell’s will made no provision for Thomas Warner, her unmarried partner of 19 years. The Recorder found that, given Mr Warner’s age, infirmity, long occupation and local support, continued occupation of the property was needed for his maintenance. He ordered its transfer from the estate to Mr Warner for £385,000.

Mr Justice Newey dismissed Mrs Lewis’s appeal. On a second appeal, Mrs Lewis argued that Mr Warner did not need the property and that the court lacked jurisdiction to order a transfer for full value. The central questions were whether the will failed to make reasonable financial provision for maintenance and whether the transfer order was legally permissible.

The appeal was dismissed unanimously. McCombe LJ and Asplin LJ agreed with the judgment of Sir Geoffrey Vos.

1. On the second appeal, the court was bound by the Recorder’s factual findings. No permission had been granted to challenge them as perverse or as findings which no reasonable judge could have made.
2. Under sections 1(1) and 1(2)(b) of the Inheritance (Provision for Family and Dependents) Act 1975, the question was whether the will made objectively reasonable financial provision for Mr Warner’s maintenance. The court applied the approach in Ilott v. Blue Cross [2017] UKSC 17. Maintenance is broad, is not limited to subsistence and may include the provision of a home. Financial need is necessary but not sufficient, and the court must balance the applicant’s needs against the beneficiary’s interests and the other statutory factors.
3. The Recorder was entitled to find that Mr Warner needed the maintenance he had received during the deceased’s lifetime to continue. His age, physical disability, nearly 20 years in the property, contributions to its running costs, location and support from neighbours outweighed the absence of any expectation that he would inherit and the absence of a moral claim. The assessment concerned objectively established needs, not merely wishes or what might have been desirable.
4. Section 2(1)(c) permitted an order transferring the property to Mr Warner in return for financial consideration. The Act did not require value to move away from the estate. Where the applicant needed particular property in specie, the exact purchase price could be less important than the property itself. A transfer at full value was therefore permissible and appropriate on these facts, although such an order would be unusual. The Recorder’s pragmatic refusal to award mesne profits was also justified.

• Court of Appeal (Civil Division): in Lewis v Warner [2017] EWCA Civ 2182, dismissed Mrs Lewis’s second appeal.
• High Court, Chancery Division: Mr Justice Newey dismissed Mrs Lewis’s appeal from the Recorder’s order on 18 July 2016.
• Recorder Gardner QC: ordered transfer of the property to Mr Warner for £385,000 and made related orders concerning costs and estate property.