Barrass v Harding
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0627-4 |
| Date | 27 June 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1999/0752/B2 |
[2000] EWCA Civ J0627-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CANTERBURY COUNTY COURT
(MR. RECORDER PULMAN Q.C.)
Royal Courts of Justice
Strand
London WC2
The President
(Dame Elizabeth Butler-sloss)
Lord Justice Thorpe
1999/0752/B2
MISS D. BANGUY (Instructed by Messrs. Glasners, WC1R 4QH) appeared on behalf of the Applicant.
MR. A. ABBOT (Instructed by Messrs. Barnes Marsland, Margate CT9 1NY) appeared on behalf of the Second Respondent
(As approved)
Tuesday, 27th June 2000
THE PRESIDENT: This is an appeal from the order of Mr. Recorder Pulman Q.C., heard in the Canterbury County Court on 9th July 1999, and it is an application under the Inheritance (Provision for Family and Dependants Act) 1975. By section 1(1)(b), a former wife or former husband of a deceased who has not remarried may apply to the court for an order under section 2 of the Act on the ground that the disposition of the deceased's estate effected by his will is not such as to make reasonable financial provision for the applicant. I have, since this was a disposition of the estate by will, excluded all the other words in that section which are irrelevant to the appeal before this court.
The applicant before the Recorder was the former wife of the deceased. The respondents to that application under the 1975 Act were the executor (the first respondent) and the major beneficiary (the second respondent). The second respondent was the second wife's sister, so she had no blood relationship and no other relationship with the deceased other than their relationship through the deceased's second wife.
The deceased and the first wife (as I shall call her) were married on 3rd September 1939. The first wife was aged 19. They both took part in service in the War and after the War they returned to live in a house provided originally by the deceased's parents. They had no children of their own but they had a son, adopted by them, who was born on 8th March 1951 and who is now 49. Throughout the marriage the first wife worked, but at the sort of job that enabled her to go home and care for the son.
The marriage did not prosper. The deceased was a schoolmaster and the family moved from one house to another through the marriage. On each occasion the house in which they lived was in the sole name of the deceased. After the breakdown of the marriage, a divorce petition was filed by the first wife alleging cruelty against the husband. The petition was uncontested and a decree absolute was obtained on 3rd September 1964. Shortly thereafter the deceased remarried and his second wife died in July 1996.
After the divorce in 1964 the first wife made an application for ancillary relief, and on 24th February 1965, by consent, all the first wife's claims for ancillary relief were dismissed. There was an order of maintenance to the son, who was under 18. However, side by side with that consent order dismissing all the first wife's claims was a separate arrangement between the deceased and the first wife whereby he provided her with a ground floor flat for her life by way of lease at a peppercorn rent. It was agreed between them that if she vacated the flat at any time she would be entitled to half the value of the property as it was in 1965 and not at the date at which she vacated. The figure that was assessed for the purposes of payment to her if she left voluntarily was the sum of £1,500 —no doubt a reasonable sum in 1965, but of rather less value in 1985. The relevance of that date is that the first wife decided to join her son, who had bought a property in Ramsgate, and she eventually left her ground floor flat voluntarily in 1985, claimed the £1,500 and was paid it.
The deceased had also provided his son with a flat at well under (as the judge found) market value. The son realised that if he was to leave the flat it would be of value to his father, so he took what the judge thought was the rather unattractive course of getting his father to buy him out at £8,500 in 1985. It was at that stage that the first wife and the son went to live in Ramsgate. The son had worked in London at a modest salary. He was made redundant in 1997 and is now existing on an extremely small income.
The father was not, it appears, too pleased with having to buy his son out of the flat that he had provided for him. He made several wills, the first on 22nd May 1973, in which he indicated to his son that the entire property (of which the ground floor flat had been let to his mother) would be left to him. But another will was made by the deceased in which nothing was left to the son and the estate was left to his second wife and, if she predeceased him, to his niece, the daughter of the major beneficiary. Then, by a codicil dated 11th December 1985, the major beneficiary was substituted for her daughter (the niece), and the subscription to the codicil set out in the judgment of the recorder reads:
"In view of the settlements already effected for my ex-wife and adopted son, Robert, I feel that no further consideration should be effected."
After his second wife died, the deceased made his last will in which he left the estate to the major beneficiary (as he had done by the previous codicil) and he made no mention of either his son or of his first wife. However, shortly before his death the father had gone into a nursing home. Perhaps to say that he was reconciled with the son puts it too high; but certainly a relationship developed again between the son and the father. There was discussion that the son might have a power of attorney, that the deceased needed to nominate a next of kin and the father gave to his son a car valued at £700 which he no longer needed. He also paid that year's insurance, which, as the judge put it, was a generous provision made by the father of an adult son, and particularly helpful when Robert was earning so modestly.
The deceased's solicitor was told and gave evidence to the effect that the deceased had wanted to discuss his will with view to the possibility, at least, of having Robert as his next of kin, and there was, I suppose, the possibility that Robert might have been mentioned in the will. In the event, the father died before he could return to the solicitor to change his testamentary dispositions.
The first wife made her application under the 1975 Act as a former wife. The evidence given by the former wife before the Recorder was entirely accepted by him, who found her to be entirely frank and open and a charming lady. He found that she was in a parlous financial state and living with a son whose own income was little, if at all, above the breadline.
The Recorder then looked at the Act, looked at a number of cases and came to the conclusion, after a careful review of the cases, at page 15 of his judgment:
"In my judgment, the Applicant cannot show that she has a claim against the estate of the deceased, because her entitlement to financial support from him had ceased on receipt of the £1,500. The only manner in which she could establish any claim is to show that there were special circumstances, as referred to by Peter Gibson L.J. [that is to say in the case of Cameron v. Treasury Solicitor [1996] 2 F.L.R. 716, to which I shall refer in a moment]. Those special circumstances were canvassed in Fullard as I have mentioned above [another decision to which I shall refer in a moment].
"I find that the substantial capital value of the estate in excess of £200,000 is one of the special circumstances which can be taken into account. It is analogous to the insurance policy proceeds there considered.
"I also have to consider whether I can take into account as a special circumstance the new relationship between Mr. Barrass and his son, Robert, as it existed shortly before death. In my judgment I can take this into account….."
He then sets out the reasons —the giving of the car, the paying of the insurance premium, the lack of consideration, that it was generosity, that it was of substantial value to the son because of his paucity of earnings. He continued:
"Mr. Barrass, the deceased, knew that his son was in parlous financial circumstances. He also knew that Mr. Barrass was assisting in maintaining his mother, the first wife of Mr. Barrass. She, too, was in parlous financial circumstances.
"Knowing of what son was doing for mother, and knowing that his death was imminent, I find that that gift and the continuing contribution to the insurance premium plainly intended for the future is something which is a special circumstance in this case."
Turning now to the state of the law on this subject, as I have already said, the first wife had the right to make a claim under section 1(1)(b) of the Act. But the first wife has to demonstrate that the disposition of the deceased's estate effected by his will is not such as to make reasonable financial provision for the applicant. The Act provides for those who have not been properly considered by the deceased, either by way of making a will or by failing to make a will. It does not provide that in all cases those who have previously been married who may be in poor financial circumstances are, if the former spouse dies with sufficient money, entitled to a share of the estate. We still live in a world where, to some extent at least, a man or woman is entitled to dispose of his or her assets by will as he or she chooses.
The question as to whether the disposition was such as to make reasonable financial provision for the applicant was posed by Ormrod L.J. in In re Fullard (Deceased) ...
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