B e f o r e :
LORD JUSTICE STEPHENSON
LORD JUSTICE CUMMING-BRUCE
and
LORD JUSTICE GRIFFITHS
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THOMAS WILLIAM JELLEY
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Appellant (Plaintiff)
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JOHN JOSEPH ILIFFE, PETER SHIRLEY ILIFFE, BETTY ARNOLD (Married Woman)
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Respondents (Defendants)
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2).
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MR, V. H. JOFFE (instructed by Messrs Donald Nelson & Co., solicitors, London: agents for Messrs T. P. Keith Oakley & Co., solicitors, Hinckley) appeared on behalf of the Appellant (Plaintiff).
MR. G.M.G. BUTTERFIELD (instructed by Messrs Headleys, solicitors, Hinckley) appeared on behalf of the Respondents (Defendants).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE STEPHENSON: Mr. Jelley appeals against the dismissal of his application under the Inheritance (Provision for Family and Dependants) Act 1975 that reasonable financial provision for his maintenance be made out of the estate of Florence Lilian May Iliffe deceased.
He made his application on 19th August 1979. The respondents to this appeal, who are her three children, the first being the sole proving executor of and one of the beneficiaries under her will, met that application with an application to strike it out under the court's inherent jurisdiction on the ground that the evidence in support of it disclosed no reasonable cause of action in that when it came to be considered it would be bound to fail.
The appellant's application had been issued in the Family Division Coventry District Registry (in accordance with R.S.C. Order 99, which permitted it to be taken out in the Chancery Division also), and on 13th June 1980 the District Registrar ordered "that the action to be struck out under Order 18 rule 19(1)(a)" (sic), and gave leave to appeal. On 28th October 1980 Mr. Justice Bush, sitting at Birmingham, dismissed the appellant's appeal and refused leave to appeal. We have given the appellant leave to appeal and have heard his appeal by which he asks us to restore his originating summons and let his application be heard on the merits.
The District Registrar reached his decision on the evidence of affidavits sworn by the appellant and his two daughters on the one hand, and the deceased's son (the first respondent) and one of her daughters (the third respondent) on the other. The judge had before him a further affidavit from the appellant, and also an affidavit from the proprietress of a seaside hotel, which may have been before the registrar also. There was no oral evidence or cross-examination on the affidavits, but we were informed by Mr. Joffe, for the appellant, that he had no further evidence to put before the court if the matter should go to trial. We have an agreed note of the learned judge's judgment, which he has not had an opportunity of approving. It contains a clear statement of the undisputed facts and of his reasons for dismissing the appeal.
The deceased was the widow of the appellant's brother, who died in 1970. The appellant's wife, who died in 1968, was her sister. In 1971 the appellant went to live with the deceased in a house at 113 Southfield Road, Hinckley. Her husband had left the house to her for her life and after her death to their three children, but by a deed of arrangement in 1970 they conveyed the freehold to her. It was clearly understood by them - and they said by the appellant also, though he denied it - that the house should go to the children after her death. And so it did. By her will made on 22nd May 1972, of which the first respondent and the appellant were executors and trustees, she left all her property, real and personal, to them upon trust to divide her residuary estate between her three children in equal shares. At her death on 8th April 1979 the house, valued at £16,000, constituted by far the greatest part of her estate, which was valued when probate was granted to the first respondent at £17,303.86 net.
Ten days after Mrs. Iliffe's death, solicitors wrote to the respondents' solicitors a letter before application, which was read by the judge. They wrote:
"We act on behalf of Thomas William Jelley, the common law husband of Mrs. Iliffe. We understand from our client that Mrs. Iliffe died on the 8th April 1979. We understand from our client that he lived with Mrs. Iliffe for eight years and has made substantial contributions to her maintenance and advancement. He has contributed both to the purchase of furniture at 113 Southfield Road and has carried out certain improvements to the property at his own expense.
In consequence we are of the opinion that the Will does not make any financial provisions for Mr. Jelley and accordingly we regard the situation as one where our client is entitled to make an application under the Inheritance (Provision for Family and Dependants) Act 1975. If such an application were to be made we are satisfied that the courts would provide the provisions for our client to enable him to adequately maintain himself. We understand that the deceased's estate consists of ready cash of somewhere in the region of £2,700 and the freehold property, 113 Southfield Road, Hinckley. Our client's only capital is some £1,800.
We look forward to hearing from you with your client's proposals as to entering into a Deed of Family Arrangement to enable adequate provisions to be made to our client without the necessity of an application being made to the court."
The appellant had suggested to the deceased that he should leave the house where he was living with a married daughter who was willing to keep him; but the deceased told him that she was lonely and frightened. He had known her nearly all her life and he thought he could help to look after her house and garden. So in March 1971 he moved in. In his first affidavit at paragraph 11 he swore:
"I contributed to the home by providing my own furniture in the first instance and subsequently by providing many more articles of furniture and household use fitting carpets curtains tiles a bath and toilet and gates fencing water butt and greenhouse for the outside of the property out of my savings which in 1971 amounted to over £1,000.00."
There was, as the judge said, "some dispute as to whether the appellant was merely a lodger with the deceased or whether, as he said, they were really living as man and wife. There was the evidence of the hotel proprietress that they shared a double room on holiday together. He was about 64 and she three years younger when they started to live together, Whatever the sleeping arrangements in 1971 or later were, they agreed to share the accommodation at her house and thereafter they must be assumed to have lived as the appellant swore they did in paragraph 2 of his first affidavit:
"Immediately before her death and since the time we had commenced to live together the deceased was maintaining me and making a substantial contribution otherwise than for full valuable consideration in money or money's worth towards my reasonable needs in that she was providing - me with accommodation at 113 Southfield Road and a home there and she and I had pooled our respective incomes and latterly our old-age pensions, mine of £20.23 per week and hers of £20.10 per week towards our common living expenses. In addition we received £10.40 per week attendance allowance from 11th November 1978 for the period of the deceased's last illness."
The judge read the relevant provisions of the Act, which are as follows:
"1(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:
(a) the wife or husband of the deceased;
(b) a former wife or former husband of the deceased who has not remarried;
(c) a child of the deceased;
(d) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;"
(e) (the relevant paragraph) "any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
(2) In this Act 'reasonable financial provision -
(b) in the case of any other application made by virtue of subsection (1) above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.
(3) For the purposes of subsection l(e) above, a person shall be treated as being maintained by the deceased, either wholly or partly, as the case may be, if the deceased otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person."
Section 3 subsection (4) reads:
"Without prejudice to the generality of paragraph (g) of subsection (1) above, " -
(which is a paragraph which requires the court, on hearing an application, to take into account any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant)
"where an application for an order under section 2 of this Act is made by virtue of section 1(1)(e) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility."
The judge then said this:
"We have two people living together as man and wife pooling their incomes and one of them happens to own the house in which they live. Does the provision of rent free accommodation amount to a substantial contribution to his maintenance? Was it intended by the deceased that that should be maintenance of Mr. Jelley in moneys worth and intended by her to continue until his death? I do not think that it was intended by Mrs. Florence Iliffe that it was to be and Mr. Jelley was aware of this. I do not think for one minute that she assumed a responsibility in money or moneys worth for Mr. Jelley. They were living together and it just so happened that she owned the house in which they both lived. It was no more than that. Interesting to see how, he first put it."
The judge then referred to the first paragraph of the letter of 18th April 1979 and paragraph 11 of the appellant's first affidavit, which I have read. He continued:
"in other words he is saying 'I was the one who has been maintaining the other party to our agreement. I am the one who has been making substantial contributions'. The Act does not cater for reimbursement in those circumstances. The provision of Rent Free accommodation is insignificant in relation to those acts. One must find maintenance in money or moneys worth and an assumption of such responsibility by the deceased. In my view Mr. Jelley comes nowhere near proving the matters he must prove. I find as a fact that both of the requirements of this Act are absent.
The Registrar was perfectly right and I take the view that this action should be struck out and the appeal dismissed."
In interpreting the Act and deciding whether the judge's reasoning and conclusions are correct, we have in mind that he had the help of the decisions of Mr. Justice Arnold in Re Wilkinson 1978 Fam. 22 and of Sir Robert Megarry, V.C. in Re Beaumont 1980 Ch.444. Also that he has not had a chance to revise or correct the note of his judgment which I have just read.
The Act of 1975 gave a statutory right to apply to the court for reasonable financial provision out of deceased's' estates not only to their families but to certain other •dependants'. Not only spouses and children and other members of a deceased's family, who were dependent on him (or sometimes her) for support during his (or her) lifetime, but have been denied it after the death of their supporter, can be awarded financial provision by the court. A person might maintain or help to maintain others, of whom a man's mistress is perhaps the most obvious example, and those in her position may under the statute be able to obtain money from his estate.
Section 1(1)(e) defines one new class which qualifies for the right to apply for such provision. The question which, like the District Registrar and Mr. Justice Bush, this court has to decide is whether on the evidence, which must be at this stage accepted as true, the appellant comes within the defined class and qualifies for that right. Whether there is anything else in the statute, particularly in ss.l(3) and 3(4) which affects that definition and that right is a question we have to consider. Whether the appellant will succeed in his application is not a question we have to consider except - an important exception - insofar as it might be plain that his application would be bound to fail.
In answering the question whether the statute gives the appellant the right which the registrar and judge have denied him we, like the statute, are concerned with dependency for support of that kind well-known to family law as maintenance. What may be called matrimonial maintenance is mainly if not exclusively of two kinds, financial provision or the provision of accommodation in a house. A man maintains his wife and children by providing them with somewhere to live or by paying contributions of money or by both, and if he does that he maintains them, he assumes the responsibility of maintaining them and he discharges that responsibility as long as he continues to do so. That it seems to me is the background against which we have to consider the relevant provisions of the Act extending the right to apply for financial provision to those who have been maintained by a deceased person during his lifetime and immediately before his death, and to consider counsel's submissions upon those provisions and their true interpretation.
I respectfully agree with the learned Vice-chancellor, for the reasons that he gives in his exposition of the statute at 1980 Ch. 450-8 on all points but one. (1) The deeming provision in s.l(3) exhaustively or exclusively defines what s.l(l)(e) means by 'being maintained', and does not include in those words a state of affairs which is not within s.l(l)(e) and would extend its ambit . To qualify within s.1(1)(e) a claimant must satisfy s.l(3), as if before the words 'if the deceased' the draftsman of s.l(3) had inserted the word 'only'; (2) In considering whether a person is being maintained 'immediately before the death of the deceased' it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death. It is, I think, not disputed that a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal sickness: (3) Like the Vice-chancellor I reject the contention that the parenthetical words in s.l(3) 'otherwise than for full valuable consideration' apply only to full valuable consideration under a contract and agree with him and with Mr. Justice Arnold that they apply whenever full valuable consideration is given, whether under contract or otherwise. Mr. Joffe supported the appellant's argument against that interpretation by a reference to s,10(2)(b) and s.ll(2)(c), where the same phrase is clearly used in the context of a disposition or contract for the benefit of a donee. But even without referring to the Law Commission's Second Report on Family Property (Law Com.No.61), on which the statute was based, the narrower construction which has so far been rejected would exclude from its benefits those family arrangements which it seems designed to recognize as often requiring a continuation of support after the death of the supporter.
Where, however, I feel bound to part company from the Vice-Chancellor is in his interpretation of assumption of responsibility for the maintenance of the supported person. I do not question his opinion that the requirement of s.3(4) that the court 'should have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility' implies or 'assumes' (in another sense) that at the first stage, when the court is considering the applicant's right to apply under s.l(l)(e), he must prove that the deceased did 'assume responsibility' for his maintenance. But I cannot, with respect, agree with him, in spite of Mr. Butterfield's submission for the respondents that I should, that the bare fact of maintenance raises no presumption that responsibility for it has been assumed. I am of opinion that it generally does. I would not disagree with the Vice-chancellor when he says (at 458C) that "the word 'assumes' ..... seems to me to indicate that there must be some act or acts which demonstrate an undertaking of responsibility, or the taking of the responsibility on oneself". And the Act, here and elsewhere, has drawn a distinction between assuming and discharging responsibility. But how better or more clearly can one take on or discharge responsibility for maintenance than by actually maintaining? A man may say he is going to support another and not do it, promise to pay school fees but not pay; but if he does pay them, has he not both assumed and discharged responsibility for them whether or not he covenants to pay them? Surely 'A' shoulders the burden of supporting 'B' by supporting him. If 'B' is 'A' a mistress and he maintains her by providing her with accommodation or money or both, has he not assumed or taken on responsibility for her maintenance? If it be said, as Mr. Butterfield submitted, that he has a moral obligation which makes the assumption of responsibility easier to presume, is the presumption nevertheless not to be made where provision of a share in a home and/or financial support is made out of the donor's generosity of heart to a poor relation or friend? It may be that the presumption can be rebutted by circumstances including a disclaimer of any intention to maintain. But here there is, in my judgment, a distinction to be drawn between an intention to maintain during the lifetime of the giver who has something to offer and an intention to provide continuing support after death. I cannot help thinking that there is some confusion between the two, if not in the Vice-chancellor's judgment, at least in the judgment of Mr. Justice Bush and in the argument by which Mr. Butterfield has sought to support it. If it is necessary, or relevant, to prove an intention on the part of the deceased to maintain a dependant, qualified to apply under s.l(l)(e), after the deceased's death, the only cases in which there will be the required qualification will be those where the deceased's intention has been defeated by accident, e.g. by his dying intestate leaving children or having made an invalid will in the dependant's favour.
I do not read the Act as expressing so limited a legislative intention. Its object is surely to remedy wherever reasonably possible, the injustice of one, who has been put by a deceased person in a position of dependency upon him, being deprived of any financial support, either by accident or by design of the deceased, after his death. To leave a dependant, to whom no legal or moral obligation is owed, unprovided for after death may not entitle the dependant to much or indeed any financial provision in all the circumstances, but he is not disentitled from applying for such provision if he can prove that the deceased by his conduct made him dependent upon him for maintenance, whether intentionally or not.
Accordingly, I am of opinion that the court has to consider whether the deceased, otherwise than for valuable consideration (and irrespective of the existence of any contract), was in fact making a substantial contribution in money or money's worth towards the reasonable needs of the appellant, on a settled basis or arrangement which either was still in force immediately before the deceased's death or would have lasted until her death but for the approach of death and the consequent inability of either party to continue to carry out the arrangement. To discover whether the deceased was making such a contribution the court has to balance what she was contributing against what he was contributing, and if there is any doubt about the balance tipping in favour of hers being the greater contribution, the matter must, in my opinion, go to trial. If, however, the balance is bound to come down in favour of his being the greater contribution, or if the contributions are clearly equal, there is no dependency of him on her, either because she depended on him or there was mutual dependency between them, and his application should be struck out now as bound to fail. Where what 'B' does gives full valuable consideration for the substantial contribution 'A' makes, there is no dependency and 'B's claim under the Act should be struck out. The balancing of imponderables like companionship and other services, on which the court has somehow to put a financial value, against contributions of money or accommodation is a hard task, as Mr. Justice Arnold found it in Re Wilkinson, a case of two arthritic sisters, in which he found "with considerable uncertainty' that the services of the sister who was taken into the deceased sister's house were just outweighed by what the deceased gave her in board and lodging enough to entitle her to go on with her application. In Re Beaumont, which was on the facts much closer to this case, the Vice-chancellor did not weigh the contributions of man and mistress in a balancing operation because he held that there had been no assumption of responsibility for maintenance of the man by what the deceased mistress had contributed in accommodation and money. It is an operation which it may be said should be left to the later stage of trial, but if it can be done at this stage and plainly results in the scales ending level or the applicant's scale descending under the weight of his greater contribution then the right course is to save the costs of further proceedings, which will probably come out of the estate, may be charged to the Legal Aid Fund, and are likely to leave little or nothing for the applicant or the deceased's estate. Such litigation in respect of small estates should be discouraged as far as justly possible, as this Court recently repeated in Re Coventry 1980 Ch.461.
Can this difficult operation be carried out at this stage and plainly produce that result? I have no doubt that the provision of free accommodation in these times is a substantial contribution to the needs of the accommodated and was a substantial contribution to the appellant's reasonable needs. If in describing the deceased as one who 'happens to own the house in which they live' the judge intended to treat that as an accidental and therefore insignificant circumstance. I cannot agree with him; it might qualify the appellant to pursue his claim because the pooling of their incomes and the remaining contributions of aid and comfort which each gave to the other cancelled out. In my judgment the statute, whether literally or purposively construed, requires the court to take a broad common sense view of the question whether the applicant for the statutory relief was a dependant of the deceased before death, and the ordinary man's answer to what, on this approach, is the right question: "was this man dependent on this woman during her lifetime for maintenance, or did he give as good as he got?" might be (without regard to nice differences between the facts in this and other cases) that each was partly dependent on the other and he gave her, in companionship (whether or not it amount to consortium) and help in money and in furnishing her house and caring for her and her house and garden, as much as she gave him in companionship and rent-free accommodation and money and looking after him by cooking and cleaning.
I do not therefore agree with the judge that the appellant was the one who had been making substantial contributions, if by that he meant that the appellant was the only one. Nor would I accept that the deceased's provision of rent-free accommodation was insignificant in relation to those acts of his. I find here, unlike the judge, maintenance in money and money's worth for a long time and an assumption of responsibility for such maintenance by the deceased to a considerable extent and on a settled basis. But I do not think her intention to continue such maintenance until his death (as the judge is noted as saying), or his awareness (or ignorance) that such was not her intention, is relevant to the question whether he qualifies for any financial provision after her death. And I find also that the appellant was helping to maintain her by his contributions financially and otherwise and so giving some valuable consideration for her contribution to their life together.
But how can we decide now whether the appellant was on balance being maintained in the sense required by the statute and so is a dependent qualified to claim that .the deceased ought to have made some financial provision for him after her death? The qualifying status of dependency is a question of fact which can only be decided against an applicant if there is no evidence on which it could be answered in his favour and although we were told that the appellant is probably not in a position to call any further evidence I do not think we should rule out his application now and prevent the court to which the discretion has been given from exercizing it after hearing all the evidence.
The judge seems to have struck out the application because he did not find maintenance in money or money's worth or an assumption of responsibility for such maintenance by the deceased. The finding of no maintenance may have been based mainly on a view of assumption of responsibility which he shared with the Vice—Chancellor but which I consider mistaken. But it is, I think, clear from his reference to 'both of the requirements of the Act' that it was based also on his opinion either that the deceased had not made a substantial contribution to the applicant's maintenance or that he had given full valuable consideration for the substantial contribution which she made.
With that second reason after considerable hesitation I feel unable to agree. There must be few cases indeed when the result of the balancing of contributions of deceased and alleged dependent is so plain before trial that the court is entitled to strike out an application under s.l(l)(e). In many cases of mutual dependency there must be real doubt whether an applicant will be able to prove dependency within s.1(1)(e), and whether if he does the court will make any financial provision for him out of the deceased's estate. If there is such doubt the case is not one for the exercise of the court's inherent jurisdiction to stop it without a full hearing, because the court cannot say that it is bound to fail.
Here there are several indications that the appellant's case is likely to fail. He did a lot for the deceased, perhaps enough to equal what she did for him, including the provision of rent-free accommodation, so he may not have been on balance dependent on her. Then the house was her children's until they conveyed it to her and she remained under a moral obligation to leave it back to them on her death. He had a home with a daughter to go to. He first applied to live on in the deceased's house after her death, later changed his mind and applied for financial provision. These are all matters of conduct to which the court would have to have regard under s.3(l)(g) in determining whether it should give him any money and if so, how much. On the affidavit evidence it is hard to see how a court could award him anything out of an estate as small as this, which the deceased wanted her children to enjoy after they had been so generous as to convert her life interest in the house into absolute ownership. If the appellant has indeed no further evidence to adduce at the hearing he would be well advised not to pursue his application, particularly with the prospects of any property he may recover being charged to the Legal Aid Fund in payment of his costs.
I should like to save him and the deceased's estate all further expense by affirming the judge's order and dismissing the appeal. But I do not believe that the prospects of failure are plain enough. It is only in plain cases that this drastic jurisdiction should be exercised, even where a doubtful defendant seeks the statutory provision out of a small estate. To invoke the jurisdiction in cases which are not plain is not to save costs but to increase them. Even when the case is plain there will often be two sets of proceedings, for an applicant will seldom be content to accept the decision of a master or registrar or to stop short of a judge, and there may be sometimes a second appeal, as in this case.
For these reasons I would allow the appeal and let the claim proceed.
(Lord Justice Cumming-Bruce is unable to be present today, but he authorises me to say that he has read the judgment which I have just delivered and the judgment which my Lord, Lord Justice Griffiths, is about to deliver, and agrees with both those judgments)
LORD JUSTICE GRIFFITHS: I agree with the construction of s.l(l)(e) and S.l(3) expounded by the Vice-chancellor in Re Beaumont, 1979 3 WLR 818. I adopt his reasoning and set out the following conclusions.
S.1(3) contains an exhaustive definition of the words "being maintained" where they appear in s.l(l)(e).
The words 'immediately before the death of the deceased" in s.l(l)(e) cannot be construed literally as applying to the defacto situation at death but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them.
S.l(3) requires the court to balance the benefits received by the applicant from the deceased against those provided by the applicant to the deceased. In striking the balance the phrase "for full valuable consideration" is not to be construed as being limited to benefits provided under a contract. Only if the balance comes down heavily in favour of the applicant will it be shown that the deceased was "making a substantial contribution in money or moneys worth towards the reasonable needs" of the applicant. In striking this balance the court must use common sense and remember that the object of parliament in creating this extra class of persons who may claim benefit from an estate was to provide relief for persons of whom it could truly be said that they were wholly or partially dependent on the deceased. It cannot be an exact exercise of evaluating services in pounds and pence. By way of example if a man was living with a woman as his wife providing the house and all the money for their living expenses she would clearly be dependent upon him, and it would not be right to deprive her of her claim by arguing that she was in fact performing the services that a housekeeper would perform and it would cost more to employ a housekeeper than was spent on her and indeed perhaps more than the deceased had available to spend upon her. Each case will have to be looked at carefully on its own facts to see whether common sense leads to the conclusion that the applicant can fairly be regarded as a dependent.
The difficulty I have is to know what significance to attach to the words 'assumed responsibility for the maintenance of the applicant' in s.3(4). S.l(l)(e) appears to me to be aimed at giving relief to persons where the relationship to the deceased is such that it is highly unlikely that any formal arrangements will have been made between them. Obvious examples are the elderly but impoverished relative or friend who is taken into the deceased's household and given free board and lodging and treated as a member of the family. Or a man living with a woman out of wedlock but supporting her as he would a wife. In such circumstances I would not as a general rule expect to find any formal declaration of assumption of responsibility, but it cannot have been the intention that such cases should fail for want of some such formality. I read 'assumed responsibility for' as being equivalent to 'has undertaken' and not adding much to the fact of maintenance. In this approach I part company with the Vice-Chancellor for as I read his judgment he attaches more significance to the 'assumption of responsibility'. He says:
"The word 'assumes' seems to me to indicate that there must be some act or acts which demonstrate an undertaking of responsibility, or the taking of the responsibility on oneself. It may be that in some cases where there is neither a negation of responsibility nor a positive undertaking of it, it will be possible to infer from the circumstances attending the fact of maintenance that there has indeed been an undertaking of responsibility. But it is for the plaintiff to establish that there has been an assumption of responsibility, and not for the defendants to have to rebut any presumption of an assumption of responsibility which is to be drawn from the bare fact of maintenance".
It is of course possible to envisage situations in which a deceased was making regular payments to some person's support while at the same time making it quite clear that the recipient could not count on their continuing. But I regard such a situation as likely to be the exception rather than the rule.
In practice the evidence of the applicant will reveal the relationship with the deceased and if it also shows an arrangement subsisting at the time of death under which the deceased was making a substantial contribution in money or moneys worth to the reasonable needs of the applicant it will, as a general rule, be proper to draw the inference that the deceased has undertaken to maintain the applicant and thus 'assumed responsibility for the maintenance' within the meaning of s.3(4). It should not be necessary to search for any other overt act to demonstrate the 'assumption of responsibility'.. If such an overt act were necessary I suspect that most claims intended to be covered by the Act would fail.
With these considerations in mind I turn to the facts of the present case. Ever since they started to live together Mrs. Iliffe provided Mr. Jelley with free accommodation. I cannot in these days regard the benefit of free accommodation as insignificant; for a man living on an old-age pension it is a substantial contribution in moneys worth to his reasonable needs. From the fact that the relationship had continued for 8 years I draw the inference that Mrs. Iliffe had undertaken to provide this free accommodation for Mr. Jelley and she was maintaining him within the meaning of s.l(l)(e) unless it can be said that Mr. Jelley was giving 'full valuable consideration' in return for his free accommodation. He was not paying anything for it, but it is said that he was rendering services by looking after the garden and being a man about the house, doing various odd jobs and some internal decoration.
On the other hand the deceased was, until her illness, doing the cooking and cleaning, and I should have thought that on the face of it they were contributing about equally to their common well-being in what they did for one another. It may well be that when the claim is investigated and the witnesses cross-examined a different picture will emerge, but I feel quite unable to say that, on the face of the plaintiff's affidavits, the position was so clear that it was right to strike out his claim as showing no cause of action. The fact that the applicant was provided for 8 years with free accommodation raises to my mind an arguable case that he was being partly maintained by the deceased within the meaning of s.l(l)(e).
I reach this conclusion with some reluctance because I appreciate how undesirable it is that small estates should be eaten up by the cost of litigation, as looks likely to happen if this case now has to go back for a further hearing. But the beneficiaries under Mrs. Iliffe's will have brought it upon themselves by moving to strike out the plaintiff's claim rather than meeting it and seeking to defeat it on the merits.
I agree that this appeal should be allowed.
Appeal allowed. No order as to costs. Leave to appeal to the House of Lords refused.
