Bouette v Rose

Friday, 17 December 1999

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 life expectancy 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 eight 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 one quarter 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 per cent for Mrs Bouette absolutely and as to 75 per cent 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 per cent 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 per cent 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 Bouette 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 six 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 Bouette 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 R.S.C. order 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.3(4) of [the 1975 Act]."

This wording is taken from a procedural summons dated 30 October 1998 which resulted in the judge hearing the Order 14A summons together with the appeal from the master's 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 strike-out and to the issue of the discretion to extend time. The court has heared argument on all these issues.

Statutory provisions

The relevant provisions of the 1975 Act are in the following terms.

"s.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.

…

s.1(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.

…

s.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...