Financial Support for Child

The court must consider the financial resources and needs of the applicant now or is likely to have in the foreseeable future. It is important to obtain comprehensive details of the applicant’s financial needs and resources at an early stage. [1] The relevant information in ascertaining the Applicant’s financial resources, as are any capital assets of the Applicant, are information such as the earning capacity, pensions and Social Security benefits of the Applicant. The court must have regard to the financial obligations and responsibilities of the Applicant in considering his or her financial needs. As an example, the Applicant as a surviving spouse might need to pay for the children’s living expenses, their basic needs and health care and also need to support the children’s education. In seeking to fulfill the Applicant’s needs, the Court will also have to take into consideration the type of Order which is most suitable. [2]

Financial resources own by a person should include earned and unearned income, allowances, pensions and capital assets. State aid does not prevent the court from considering whether reasonable provision has been made and also must be taken into account. [3] In Re Collins [4] , Hollings J states that the court do not consider that the fact of support from the Department of Social Security precludes consideration of whether the intestacy has or has not made reasonable financial provision for her. In Re E [5] , an application by a widow in receipt of a State pension failed, but the decision turned on the fact that the estate was very small. In such a case, the court felt that it was reasonable not to make provision for an applicant for an applicant if the only effect of making provision would be to relieve the State from paying welfare benefits, leaving the applicant little better off.

The issue of accommodation will always be central to the court’s decision in deciding both the present and future financial needs of the Applicant. If the Applicant is elderly and there is no suitable alternative, the court will be careful in making any orders which results in the applicant having to vacate settled accommodation. [6] In Harrington v Gill [7] , the applicant aged 77 had lived for several years with the deceased in his home and had maintained by him. The trial judge awarded the applicant a lump sum of £5,000 and the income from £5,000 for life, but ordered her to vacate the home since she could be expected to find a smaller place to live in. The Court of Appeal ordered the home to be settled on the applicant for life in addition to the sums awarded at the first instance.

Financial resources and needs of any other applicant

The court must have regards to the financial resources and financial needs which any other applicants has or is likely to have in the foreseeable future. The court must consider an application not in isolation but balanced against competing claims from other applicants. [8] The court must be able to provide a fair distribution to all the applicants and make sure those who deserve a share from the deceased’s estate receive it in an appropriate amount.

The deceased’s obligations and responsibilities

Obligations include moral obligations as well as legal obligations owed by the deceased to the Applicant and to other beneficiaries. Moral obligation may arise partly out of the relationship of the Applicant to the deceased and partly out of the needs of the Applicant. For example, normally, one spouse owes a moral obligation to the other. Legal obligations are such as duty imposed on parents and spouses in matrimonial law. [9]

In Re Haig [10] , this obligation and responsibility is known as “the morally reasonable thing to have done”. The moral obligation may arise regardless of relationship. In Re Joslin [11] , the deceased had a moral obligation to a mistress of 20 years standing. The moral obligation of a parent to a child may come to an end when the child becomes the moral responsibility of another. In Re Andrews [12] , a daughter of the deceased lived with a married man for 40 years and at 69 made an application against her father’s estate but it was held she no longer had a moral claim on her father.

A moral obligation will be owed by one spouse to another. In Re Gregory [13] , the husband and wife were separated for many years and although husband did not pay maintenance and was responsible for the breakdown of the marriage he was held to have no obligation to the wife in his later years. Cf Re W [14] , where a husband and wife married in 1934 and were divorced in 1946 but no maintenance was paid. When the husband died in 1972 the court held that he should have paid maintenance and by not doing so had been able accumulate capital of £28,000 and an award of £11,000 to the 75 year old wife was made.

The moral obligation of a testator may depend partly on relationship and partly on the needs of the applicant. [15] The stronger the applicant’s needs, the chances that the testator owed a moral obligation to the applicant are also higher.

The Court of Appeal in Re Jennings [16] held that the obligation to maintain must be one which is still subsisting at the date of the deceased’s death. There is situation where the decision is clear, as when the deceased has made a promise, not necessarily to the applicant, to leave certain assets to the applicant and such promises were held to create an obligation in Goodchild v Goodchild [17] and Espinosa v Bourke [18] .