Bishop v Plumley and Another

This appeal arises from an application by the appellant for financial provision out of the estate of Douglas Plumley, whom I shall call "the deceased". The application was made under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act"). The appellant applied to the registrar, who refused her application; she appealed to Judge Fallon Q.C., sitting as a High Court judge, and her appeal was dismissed. She now appeals from that dismissal.

Section 1(1)(e) of the 1975 Act extended for the first time to a new class of applicants the right to apply to the court for financial provision from the estate of the deceased. Section 1(1)(e) applied to:

"any person (not being 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."

By section 1(2) "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."

Section 1(3) states that:

"For the purpose 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 2 sets out the powers of the court to make orders and section 3 the matters to which the court is to have regard in exercising powers under section 2. It is only necessary to refer to section 3(4) which states:

"…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…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 responsbility."

The object of the legislation is 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, per Stephenson L.J., Jelley v. Iliffe and others [1981] Fam. 128 at p. 137.

The issue in this case and the one upon which both the registrar and the judge found against the appellant is whether she qualifies as one who was being maintained, wholly or partly, by the deceased.

The short facts are as follows. The appellant and the deceased began to live together in 1973 in a caravan at Dawlish Warren in South Devon. They were both at that time married, and at the end of 1973 returned to live with their respective spouses. But during 1974 they again began to live together and thereafter cohabited until the death of the deceased on 3rd November 1984. The deceased worked as a farm labourer and the appellant for a short period helped on the farm. She also had intermittent and seasonal work. In 1975 they moved into a cottage rented from Oxford University, called "Westend Cottage". From about 1978 she claimed supplementary benefit. In 1981 both the deceased and the appellant were diagnosed as suffering from angina. He worked thereafter part-time cutting grass until the end of 1983. The appellant did not disclose all the relevant circumstances to the DHSS local office and received overpayments of benefit, which she is now repaying.

In 1983 an uncle of the deceased died, leaving him a substantial portion of the residue of his estate. On the strength of his expectation the deceased borrowed from the bank sufficient to buy outright a house, 120 Benedict Street. Completion was in December 1983 and they both moved in during January 1984. They lived there together for some nine months before his untimely death at the age of 49. The appellant has remained in the house during all the subsequent proceedings.

The deceased had made a will during the short period they were apart in 1974, leaving his estate divided between his son and his daughter. He made no provision for the appellant in his will.

The registrar found that they cohabited as husband and wife; that during the early period of cohabitation he largely supported her from his earnings, but by the end of 1983 they were both in receipt of supplementary benefit and living in rented accommodation. At that point of their relationship their circumstances were similar and they were pooling their modest resources.

The inheritance by the deceased of the substantial legacy was an extremely important event in their life together and the purchase of 120 Benedict Street by the deceased undoubtedly made a substantial contribution to the needs of the appellant, as the registrar found. But he went on to hold:

"I have come to the reluctant conclusion that certain benefits that the Plaintiff gave to the deceased…equalled the benefits the deceased gave to the Plaintiff. I am not prepared on the facts, bearing in mind the history, that the deceased gave more maintenance and benefits to the Plaintiff than vice versa."

He therefore reluctantly dismissed the application and did not go on to consider sections 2 and 3 of the Act.

The facts found by the registrar which led him to hold that the benefits conferred by the appellant were equal to those provided by the deceased were set out in his judgment:

"As the deceased became progressively ill, the burden fell upon the Plaintiff, she did everything within the house. One year before he died they moved to the final property. I have no doubt that she did everything, she drove the car most of the time, she put petrol in, she supplied petrol money. She did everything a natural wife would do. He continued to draw benefit and so did she. He gave her money for groceries—she had...