BOUETTE v ROSE Court of Appeal (Civil Division) [2000] 1 FLR 363, [2000] Fam Law 316

HEADNOTE: This was an appeal from the judgment of Jonathan Parker J (reported at [1999] 2 FLR 466) dismissing an originating summons by which Mrs Bouette (the mother) sought leave out of time for provision from the estate of her deceased daughter. The daughter had died at the age of 14 after suffering severe physical and mental disabilities due to negligence at her birth. The Court of Protection had handled the compensation awarded to her and had paid out capital and regular income to the mother to enable her to buy a house and care for the daughter. The mother's application for leave had been refused on the basis that there was no jurisdiction to hear it because she had not been maintained by the daughter within the meaning of s 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975. This provision enables 'any person . . . who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased' to bring a claim under the Act. Section 1(3) provides that: '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(4) provides that: 'where an application . . . is made by virtue of s 1(1)(e) of this Act, the court shall 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.' Held -- allowing the appeal and restoring the claim -(1) Whether one person makes a substantial gratuitous contribution to another person's needs is essentially a question of fact, and the benefactor's motives or intentions are irrelevant, except so far as s 3(4) makes them relevant to the court's task in deciding whether to make provision for the claimant, and if so in what form and on what scale. (2) As the court made clear in Jelley v Iliffe, the mere fact of one person making a substantial contribution to another person's needs raises an inference of an assumption by the former of responsibility for the latter. In this case, it must have been obvious to the officials of the Court of Protection that the daughter's funds were to be used in a way that met the mother's financial and material needs, so as to enable her to look after the daughter. The Judge had therefore erred in holding that there was no jurisdiction to hear the mothers claim. (3) It is important to construe the 1975 Act as a whole. The words 'otherwise than for full valuable consideration' in s 1(3) do not have the effect of imposing a wholly separate condition so much as of explaining the character of the contribution which amounts to maintenance. On the facts as found by the judge the mother had made no contribution to the household expenses, the daughter's share of the ownership of the home was three times that of the mother, and she had looked after the daughter for love, not money. The condition in s 1(3) was therefore satisfied.

JUDGMENT-1: ROBERT WALKER LJ: The facts This appeal raises, in sad and unusual circumstances, issues as to the Inheritance (Provision for Family and Dependants) Act 1975 ('the 1975 Act'). It is an appeal from an order of Jonathan Parker J made on 22 January 1999, dismissing an originating summons by which Mrs Irene Bouette was seeking to claim provision under the 1975 Act out of the estate of her deceased daughter, Louise. Louise had been severely disabled since birth and she was only 14 years old when she died on 10 February 1994. Medical negligence at her delivery caused severe injuries to her brain and her spine. Her lifeexpectancy was reduced and she required constant care, a responsibility which her mother undertook and discharged with great devotion. Louise's father, Mr Philip Rose, had been living with Mrs Bouette (who was divorced and had other adult children) but Mr Rose left about 8 months after the birth of Louise. A claim was made on behalf of Louise against the Essex Health Authority and on 12 May 1986 it was settled by an agreed award of 250,000 damages. Mrs Bouette had by then already been appointed by the Court of Protection as Louise's receiver. Part of the award was (with the approval of the Court of Protection) laid out in the purchase of a house called Coppins at Great Wakering, Essex, where Mrs Bouette could live and look after Louise. Mrs Bouette paid onequarter of the purchase price and three-quarters were paid out of Louise's funds. The house was acquired in the names of Mrs Bouette and her then solicitor, Mr Ian Diamond, as trustees as to 25% for Mrs Bouette absolutely and as to 75% for Louise: 'When she shall attain the age of 18 years or cease to be a mental patient under the Mental Health Acts, whichever event shall happen the later.' That wording was not particularly well chosen but there is no doubt but that a 75% share in the house forms part of Louise's estate. The house was adapted for the special needs of caring for Louise and Mrs Bouette looked after Louise there until her daughter's death. Caring for Louise was a full-time responsibility and Mrs Bouette had to give up a knitting business which she had started while pregnant with Louise. Since Louise's death Mrs Bouette has started another small business making blinds and curtains; her income from that is her only income at present. While Mrs Bouette was caring for Louise she received, in her capacity as receiver for Louise, regular payments from the Court of Protection. The judge described the arrangements as follows: 'By a direction of the Court of Protection, regular payments were made out of the funds held on behalf of Louise to Mrs Bouette as receiver for the maintenance of Louise. The payments covered (among other things) living expenses and the cost of providing appropriate equipment for Louise. Mrs Bouette operated a separate bank account relating to her activities as receiver. No payments were made by the Court of Protection to Mrs Bouette otherwise than in her capacity as receiver; in particular, no allowance or remuneration was paid to Mrs Bouette in respect of her labour in caring for Louise.' Mrs Bouette also received social security benefits, including benefits in respect of her care for Louise. The judge did not in his judgment go further into the financial details but it is common ground that there were regular monthly payments from the Court of Protection (sometimes described as being for 'housekeeping'). Initially these were at the rate of 500, rising to 620 and then to 700. There were also occasional irregular payments made under written directions from

the Court of Protection. These sometimes described the purpose (for instance respite care, holidays, and repairs to the van which carried Louise's motorised wheelchair) and sometimes referred simply to supplementing income. It is reasonable to infer that these irregular payments resulted from letters sent by Mrs Bouette to the Court of Protection. After Louise's death letters of administration to her estate were on 22 March 1994 granted to Mrs Bouette. The effect of s 14(2) of the Family Law Reform Act 1969 is that Louise's estate (which consisted of her 75% share in the house, the van, which was sold for 2000, and about 34,500 in the Court of Protection) was divisible between Mrs Bouette and Mr Rose in equal shares. Mrs Bouette has admitted that she has spent the whole of the sum (33.592 net of solicitors' fees) which she received as Louise's administrator from the Court of Protection. It was spent in a variety of ways, including gifts to her family, a new car, refurbishment of the house, and knitting and sewing equipment. Mrs Bonette has also frankly admitted that she knew that Mr Rose was entitled to half Louise's estate, but that she did not want him to have any of the estate. She was afraid that her continued occupation of the house might be threatened, and she was disturbed and upset as a result of her daughter's death. The possibility of Mrs Bouette making a claim under the 1975 Act was not considered until July 1995 (long after the normal time-limit of 6 months from the grant of representation had expired). She had received no advice about such a claim from the solicitors who had acted for her in the administration (who are not those now acting for her). After July 1995 she received advice, which was not wholly correct, from counsel (not counsel now representing her). In the end it was not until 6 March 1997 (and after Mr Rose had commenced an administration action against her) that Mrs Bonette issued her application for leave to bring proceedings under the 1975 Act out of time. On 6 January 1998 Mr Rose applied to strike out Mrs Bouette's application. On 28 April 1998, after two hearings, Master Bragge gave a reserved judgment, to which the judge rightly paid tribute, dismissing Mr Rose's strike-out application and granting Mrs Bouette permission to make her application under the 1975 Act out of time. Mr Rose appealed from both parts of the master's order but there was then a procedural complication in that Mr Rose issued a summons under RSC Ord 14A raising the question whether it was possible for Louise: '. . . as a minor of limited mental capacity and all of whose assets and income were applicable only for her benefit at the direction of the Court of Protection, to have "assumed responsibility for the maintenance of [Mrs Bouette]" within the meaning of s (4) of [the 1975 Act].' This wording is taken from a procedural summons dated 30 October 1998 which resulted in the judge hearing the Ord 14A summons together with the appeal from the masters order exercising discretion under s 4 of the 1975 Act (the summons itself seems to have gone astray). This court was told that the appeal from the master's refusal to strike out the claim was abandoned to the extent that it relied on abuse of process but that the issue of reasonable cause of action remained live. On 22 January 1999 the judge allowed Mr Rose's appeal and struck out Mrs Bouette's application, while indicating that he would, but for the strike-out, have exercised his discretion to extend time for the application. Against that order Mrs Bouette appeals (with permission of the judge) to this court. Mr Rose has put in a respondent's notice relevant both to the strikeout and to the issue of the discretion to extend time. The court has heard argument on all these issues. Statutory provisions The relevant provisions of the 1975 Act are in the following terms. Section 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) 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. ... (3) For the purposes of subsection (1)(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: '(1) Where an application is made for an order under section 2 of this Act, the court shall, in determining whether 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 such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say -(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future; (b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future: (c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future; (d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased; (e) the size and nature of the net estate of the deceased; (f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased; (g) 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. ... (4) Without prejudice to the generality of paragraph (g) of subsection (1) above, 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.' Section 4: 'An application for an order under section 2 of this Act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.' It is also appropriate to mention some provisions of Part VII of the Mental Health Act 1983 ('the 1983 Act'), which provides for the jurisdiction of the Court of Protection in the management of the property and affairs of patients (a patient is defined in s 94(2) as a person incapable, by reason of mental disorder, of managing and administering his property and affairs). Section 95(1) gives the Court of Protection a general power to do whatever is necessary or expedient: '(a) for the maintenance or other benefit of the patient. (b) for the maintenance or other benefit of members of the patient's family, (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or (d) otherwise for administering the patient's affairs.' By s 95(2) the court is, in exercising these powers, to have regard first of all to the requirements of the patient. Section 96(1) contains specific powers including (in para (e)) executing a will for a patient and (in para (j)): '. . . the reimbursement out of the property of the patient, with or without interest, of money applied by any person either in payment of the patient's debts (whether legally enforceable or not) or for the maintenance or other benefit of the patient or members of his family or in making provision for other persons or purposes for whom or which he might be expected to provide if he were not mentally disordered;' but (by g 96(4)) the court may not make a will for a minor. In some cases there is no difficulty at all in seeing how the relevant provisions of the 1975 Act are intended to operate. If a well-to-do adult invites an elderly, impoverished and invalid friend or relative into his or her home on the understanding that the guest can expect free board and lodging and a modest allowance for the foreseeable future, and the generous host unexpectedly dies first, the 1975 Act can easily perform its object, that is (as Stephenson LJ put it in Jelley v Iliffe [198] ] Fam 128, 137-138), '. . . 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.' In the example suggested there would be no doubt but that the guest was maintained by the host within s 1(1)(e) and (3) of the 1975 Act, and that the host had assumed towards the guest a responsibility or commitment of a serious and abiding character (which is relevant under s 3(4)). But the reported cases show that some general difficulties have arisen over the application of s 1(1)(e) and (3) in circumstances where there has been a degree of mutuality of benefit between the applicant and the deceased; and there has been a particular difficulty about the significance of s 3(4). Those difficulties are particularly acute in the unusual circumstances of this case. In considering the reported cases it must be noted that those

concerned with cohabiting couples would now be affected by (and might be more readily resolved because of) the Law Reform (Succession) Act 1995, which has added a new s 1(1) (ab) and (1A) to the 1975 Act in relation to deaths on or after 1 January 1996, so that unmarried heterosexual partners no longer have to brim, themselves within s 1(1)(e). The jurisdictional issue After stating the facts and summarising the relevant statutory provisions the judge noted that he had to determine two issues, the jurisdiction issue and the discretion issue. The jurisdiction issue could itself be subdivided into three points on which Mrs Bouette had to satisfy the court that she had an arguable case, that is (i) that before her death Louise was making a substantial contribution in money or money's worth towards her mother's reasonable needs; (ii) that that contribution was not for full valuable consideration; and (iii) that Louise had 'assumed responsibility' for her mother's maintenance within the meaning of s 3(4) of the 1975 Act. As already noted, the judge was here stating the issue in wide terms, but this court has thought it best to hear argument on the whole issue. Although the jurisdiction issue can, as a matter of analysis, be broken down into these three points, it is important not to forget that the court's task is to construe the 1975 Act, like any other statute, as a whole. The words 'otherwise than for full valuable consideration' do not have the effect of imposing a wholly separate condition so much as of explaining the character of the contribution which amounts to maintenance. The care provided to an invalid by a professional nurse or nursing auxiliary may make a very substantial contribution to the invalid's needs, but the relationship is a professional or employment relationship, not one of maintenance and dependency. As Griffiths LJ said in Jelley v Iliffe [1981] Fam 128, 141: '. . . 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.' The judge quoted a similar passage which occurs a little later in the judgment of Griffiths LJ and observed, correctly, that a purely subjective approach to the issue of maintenance is not appropriate. He said that there was no doubt but that the payments made by the Court of Protection for the maintenance and benefit of Louise had the side-effect of benefiting Mrs Bouette also: 'After all, Louise's pre-eminent need was to be housed in suitable accommodation with her mother so that her mother could care for her, and the meeting of that need naturally and inevitably meant that Mrs Bouette would be indirectly benefited both by the provision of joint accommodation (in that Louise provided three-quarters of the price of "Coppins") and by Louise's regular contributions via the Court of Protection to the running expenses of the joint household.' Nevertheless, the judge concluded that Mrs Bouette was not maintained by Louise for the purposes of s 1(1)(e) of the 1975 Act. He felt driven to that conclusion by two considerations: (i) the purpose of the payments made by the Court of Protection, as identified by the statutory power which it exercised; and (ii) the absence (as he saw it) of any assumption of responsibility within the meaning of s 3(4). Mr Ross Martyn for Mrs Bouette, has put forward the attractively simple argument that whether a claimant qualifies as a dependant under s 1(1)(e) (as explained by s 1(3)) is a question of fact, and that s 3(4) (as explained by this court in Jelley v Iliffe and as properly understood) does not create a further obstacle. The Court of Protection had statutory powers, which it exercised on behalf of Louise, so as to devote part of her funds to contributing to her mother's needs. It was implicit in these submissions that the judge, having started off by rejecting what he called a purely subjective approach, had nevertheless given too much weight to the form of the statutory powers and the purpose for which they were exercised, and had taken too little account of their effect. Mr Henderson, for Mr Rose, on the other hand,

submitted that the judge was right to give weight to the statutory powers. He drew attention to the first general order of the Court of Protection (made on 4 February 1985, before the damages claim was finally settled) which provided, in standard form, for the patient's income to be used for her maintenance and benefit (a reflection of the wording of s 95(1)(a) of the 1983 Act), with power to apply to the Court of Protection to resort to capital. He drew attention to the successive monthly sums which the court approved expressly for the maintenance of Louise. He submitted that Louise on her own plainly could not form any intention of maintaining her mother, and that the Court of Protection had not in fact done so, although it was arguable that it might have done so under some of the powers conferred by ss 95 and 96 of the 1983 Act. These submissions led on to what Mr Henderson had to say about s 3(4), which he described as the real heart of the case. I shall come on to the detailed submissions on s 3(4), but in my judgment the right general approach is that for which Mr Ross Martyn contended. Whether one person makes a substantial gratuitous contribution to another person's needs is essentially a question of fact, and the benefactor's motives or intentions are irrelevant except insofar as s 3(4) makes them relevant to the court's task in deciding whether to make provision for the claimant, and if so in what form and on what scale. Even when s 3(4) is taken into account this court has taken the view that actions speak louder than words. As Stephenson LJ said in Jelley v Iliffe [1981] Fam 128, 137: 'But how better or more clearly can one take on or discharge responsibility for maintenance than by actually maintaining?' Mr Henderson referred to the Court of Protection as being a creature of statute and to its obligation in the exercise of its statutory powers, to treat the patient's needs as paramount. But in the circumstances of this case, as the judge recognised, Mrs Bouette's needs were Louise's needs, because Louise needed her mother's constant care, and because of Louise's need for that care Mrs Bouette had to give up her business and had no other source of income (apart from social security benefits). Mrs Bouette seems to have been in fairly close touch with the Court of Protection throughout the receivership and the officials who dealt with her communications and sanctioned special payments must have been well aware of Mrs Bouette's financial circumstances. There is nothing absurd (at any rate to lawyers familiar with the jurisdiction of the Court of Protection) in the notion of that court acting as the conscience of a patient and making provision for those to whom the patient, if of full mental capacity, would have felt a moral obligation (see for instance Re L (WJG) [1966] Ch 135, 143-145; that case was not cited but is well known to practitioners in this field). I come next to a more detailed scrutiny of s 3(4) of the 1975 Act, while repeating my reservations about the detailed dissection of small parts of a statute which have to be understood or applied as a whole. Section 3(4), like the whole of that section is, on its face, concerned not with the threshold conditions establishing the court's jurisdiction to make an order under s 2, but with the court's decision on the merits of an application. It would therefore be surprising if s 3(4) has the effect of adding to the threshold conditions which are found in s 1(1)(e) and (3). Nevertheless, Sir Robert Megarry V-C held in Re Beaumont (Deceased), Martin v Midland Bank Turst Co [1980] Ch 444 that it had that effect (see especially at pp 454-456). The Vice-Chancellor reached that conclusion partly by reference to a verbal contrast between the language of s 3(3) and that of s 3(4) of the 1975 Act. Section 3(3) is relevant where the claimant is a child (or has been treated as a child) of the deceased, and in a case under s 1(1) (d) (claimant treated as a child) it requires the court to have regard to (among other things): '. . . whether the deceased had assumed any responsibility for the applicant's maintenance and, if so, to the extent to which and the basis upon which the deceased assumed that responsibility and to the length of time for which the deceased discharged that responsibility;' The contrast in language between the two subsections is obvious. As the Vice-Chancellor said in Re Beaumont (at 455):

'In paragraph (d) cases, the assumption of responsibility is not essential to success: in paragraph (e) cases it is.' However the Vice-Chancellor proceeded from that observation to a conclusion which, with the greatest respect, is questionable. The Vice-Chancellor concluded that s 3(4) adds to the threshold conditions laid down by s 1(1)(e) and (3). The alternative conclusion, which I find much more persuasive, is that the explanation of the difference in language between s 3(3) and s 3(4) is that the latter is not adding a new threshold condition but is paraphrasing what is already implicit in s 1(1)(e) (but is not implicit in s 1(1)(d)). In Jelley v Iliffe this court differed from what the Vice-Chancellor had said in Re Beaumont, but did not go so far as to say that an assumption of responsibility is not a distinct requirement in a s 1(1)(e) case. Stephenson LJ said (at 137) that the bare fact of maintenance generally raises a presumption of an assumption of responsibility. Griffiths LJ said (at 142): '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 money's 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 section 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.' Cumming-Bruce LJ agreed with both judgments. The decision of the Court of Appeal in Jelley v Iliffe binds this court. Although it did not agree with what the Vice-Chancellor had said in Re Beaumont about s 3(4), it did, as I read the judgments, recognise s 3(4) as adding something to the threshold test in s 1(3). But it made clear that the mere fact of one person making a substantial contribution to another person's needs raises an inference of an assumption by the former of responsibility for the latter. In this case it must have been obvious to the officials at the Court of Protection who were taking decisions about Louise's funds that her funds (and her 75% share in the house) were to be used in a way that met Mrs Bouette's financial and material needs, so as to enable Mrs Bouette to look after her daughter's physical and emotional needs. Moreover, that commitment was expected to continue throughout Louise's lifetime, unless the funds became exhausted or there was some other unexpected turn of events (the evidence indicated that Mrs Bouette's devoted care of Louise may have prolonged her lifetime beyond the doctors' original expectation). The theoretical possibility that the Court of Protection could have discontinued payments to Mrs Bouette (a possibility which, in the absence of some extraordinary change of circumstances, would seem so irrational as to invite challenge in the High Court) does not in my judgment begin to take the case out of the 1975 Act. With all respect to the judge I consider that he was wrong to attach any weight to that point. If the law were otherwise then (as Griffiths LJ said in the passage which I have already quoted) most claims intended to be covered by the 1975 Act would fail. For those reasons I disagree with the judge's conclusion on the jurisdiction issue. The respondent's notice seeks to uphold that conclusion on other grounds, that is by reference to the requirement in s 1(3) that any contribution to the claimant's needs should have been made 'otherwise than for full valuable consideration'. That requirement was considered by this court in Jelley v Iliffe and again in Bishop v Plumley and Another [1991] 1 FLR 121. Those were both cases of elderly unmarried couples sharing a home on a permanent basis, and their facts might now raise fewer problems because of the amendments made by the Law Reform (Succession) Act 1995. I do not find it necessary to go far into those authorities because on the facts of this case as found by the judge (i) Mrs Bouette was making no monetary contribution to the household expenses, except for such part of the social security benefits as was hers; all the rest of the money was Louise's money; (ii) Louise's share in the ownership of the house was three times as large as her mother's; and (iii) Mrs Bouette was looking after

her daughter for love, not for money. This case is, with appropriate modifications in the relationships, covered by the example given in the judgment of Stephenson LJ in Jelley v Iliffe at 141: '. . . 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 he regarded as a dependant.' I am therefore in agreement with the judge's conclusion on that point. Discretion I can deal with the issue of discretion much more briefly. The master exercised his discretion under s 4 of the 1975 Act in favour of Mrs Bouette, and the judge would have done the same had he not felt driven to decide the issue of jurisdiction against her. It is only exceptionally that this court will entertain a second-tier appeal. I would be particularly reluctant to do so on a point challenging the concurrent exercise of discretion embodied in two full and careful judgments given below. I am not persuaded that either judgment goes outside the (generous ambit for the exercise of the court's discretion under s 4, as summarised in Re Salmon (Deceased); Coard v National Westminster Bank [1981] Ch 167, 175-176. Conclusion I would therefore allow this appeal and restore Mrs Bouette's claim under the 1975 Act. In doing so I express the earnest hope that neither this claim, nor Mr Rose's claim in his administration action, will have to come to trial. The parties' advisers should do all they can, possibly with the help of some alternative dispute resolution procedure, to reach an acceptable compromise. Otherwise there will be a real danger of the whole of Louise's estate being expended on the costs of litigation, with no benefit to either side. That outcome would be a very bitter postscript to Louise's short and tragic life.