Dingmar v Dingmar
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Jacob,Lord Justice Ward |
| Judgment Date | 12 July 2006 |
| Neutral Citation | [2006] EWCA Civ 942 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2 2005/2263 |
| Date | 12 July 2006 |
[2006] EWCA Civ 942
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
HIS HONOUR JUDGE BEHRENS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Jacob and
Lord Justice Lloyd
Case No: B2 2005/2263
4DW01497
Paul Brook (instructed by Chadwick Lawrence) for the Appellant
The Respondent was not present or represented
Introduction
This appeal raises a somewhat puzzling point under the Inheritance (Provision for Family and Dependants) Act 1975, which seems not to have arisen before, on facts which as regards the essential features cannot be unusual, apart from the length of time that elapsed between the relevant death and the trial.
The late Ibrahim Dingmar was the husband of the Claimant and father of the Defendant. He died on 28 June 1997. Immediately before his death he and the Defendant owned a house called 10 Kertland Street, Saddletown, Dewsbury, jointly, as beneficial joint tenants. He and the Claimant lived there, with their two young children. On his death the Defendant became the sole owner of the house by right of survivorship.
The house had originally been bought in 1981 in the joint names of the deceased and his first wife, mother of the Defendant, Rabaibai Dingmar. She died in October 1982, and the deceased then became the sole owner by survivorship. He put it into the joint names of himself and the Defendant, his second son, in July 1985, by way of gift, shortly before he married the Claimant.
There were no assets of any worthwhile value in the deceased's estate. To the extent that there had been, the Claimant would have been entitled to them (up to the amount of the statutory legacy under the Administration of Estates Act 1925), because the deceased died without having made a will. No grant of representation in relation to the estate was therefore needed at that stage, and none was issued. The Claimant continued to live in the house with her children, as she does to this day. She is now 54 and the children are aged 20 and 18. In 2004 the Defendant claimed possession of the house. Her attempt to resist those proceedings on the basis that she had a beneficial interest of her own in the house failed. An order for possession was made against her.
Also in 2004 the Claimant issued the proceedings in the Dewsbury County Court in which this appeal arises, against the Defendant under the 1975 Act, in which she applied for an order under section 9 of that Act that the deceased's severable share of the house be treated as an asset of his net estate. On 8 July 2005 she obtained a grant of letters of administration to the estate. The case was transferred to the Leeds County Court, and came to trial before His Honour Judge Behrens on 29 September 2005. By that time it was clear that there was no asset of any value in the net estate, so the Claimant depended on being able to bring part of the value of the house in under section 9 of the Act. The house was agreed to have been worth £40,000 at the date of death, and to be worth £95,000 at the time of the trial.
The judge held that he could not award the Claimant more than half of the value of the house as at the date of death, and he did so. He made it clear that, if he had been able to do so, he would have awarded her a half share of the house, or at least a share of the house corresponding to the proportion that half the value at death bore to the whole current value, in effect 21%. The question on this appeal is whether he could have made one or other of those orders.
The Appellant has been represented before us, as she was before the judge, by Mr Paul Brook. The Respondent was represented before the judge by Mr Lakin, of Counsel. He did not serve a Respondent's Notice, and took no part in the appeal at any stage. He dispensed with the services of his solicitors and counsel and chose not to attend in person. We have, however, a transcript of the hearing before the judge from which we can see how the matter was put to the judge by Mr Lakin on his behalf.
The Inheritance (Provision for Family and Dependants) Act 1975
The issue arises under section 9(1) of the 1975 Act. This is as follows:
"(1) Where a deceased person was immediately before his death beneficially entitled to a joint tenancy of any property, then, if, before the end of the period of six months from the date on which representation with respect to the estate of the deceased was first taken out, an application is made for an order under section 2 of this Act, the court for the purpose of facilitating the making of financial provision for the applicant under this Act may order that the deceased's severable share of that property, at the value thereof immediately before his death, shall, to such extent as appears to the court to be just in all the circumstances of the case, be treated for the purposes of this Act as part of the net estate of the deceased."
The general purpose of the section is clear. A deceased's former severable share under a beneficial joint tenancy passes to the other one or more joint tenants by survivorship on his death. This provision, new to English law in the 1975 Act, is designed to alleviate the effect of that by allowing the former severable share to be brought into account for the purposes of an order under the Act, subject to certain constraints. The question in the present case arises from the words "the deceased's severable share of that property, at the value thereof immediately before his death".
To put this provision in context, on an application by a person within the class identified in section 1, the court may make any one or more of a variety of orders described in section 2(1) , "if it is satisfied 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". The orders which the court can make are all expressed to relate to "the net estate of the deceased". They include orders for the payment of periodical payments or a lump sum, and "(c) an order for the transfer to the applicant of such property comprised in that estate as may be [specified in the order]; (d) an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified". By virtue of section 2(4) , an order under the section may also include consequential provisions for the purposes of giving effect to the order, and for this purpose the court may "order any person who holds any property which forms part of the net estate of the deceased to make such payment or transfer such property as may be specified in the order".
The meaning of "net estate" is given in the definition section, section 25(1) , as follows:
""net estate", in relation to a deceased person, means
(a) all property of which the deceased had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, including any inheritance tax payable out of his estate on his death;
(b) any property in respect of which the deceased held a general power of appointment (not being a power exercisable by will) which has not been exercised;
(c) any sum of money or other property which is treated for the purposes of this Act as part of the net estate of the deceased by virtue of section 8( 1) or (2) of this Act;
(d) any property which is treated for the purposes of this Act as part of the net estate of the deceased by virtue of an order made under section 9 of the Act;
(e) any sum of money or other property which is, by reason of a disposition or contract made by the deceased, ordered under section 10 or 11 of this Act to be provided for the purpose of the making of financial provision under this Act;"
We are concerned with paragraph (d) . Section 8, referred to in paragraph (c) , deals with property which is the subject of a statutory nomination or of a donatio mortis causa, both being processes operating on death but not through the estate of the deceased and thus, in a way, analogous with the case of a beneficial joint tenancy. Sections 8 and 9 are under the heading "Property available for financial provision". In each case section 8 requires the subject-matter to be treated as part of the net estate of the deceased, net of inheritance tax, and "to the extent of the value thereof at the date of the death". The contrast with section 9, which speaks of the value immediately before the death, is explained by the fact that the moment before death is the last time when the deceased, by severing the joint tenancy, could have procured that a half share (or corresponding proportion if there were more than two joint tenants) would pass as part of his estate: see Powell v. Osbourne [1993] 1 FLR 1001.
Sections 10 and 11 are both aimed at counteracting steps taken to defeat an application for financial provision, either by a disposition (section 10) or by a contract (section 11) . In each of those cases, subject to requirements set out in the section, the court may order the donee (as defined) to provide, for the purpose of the making of financial provision, a sum of money or property specified in the order. That then comes into the definition of the net estate under paragraph (e) set out above.
The extent of the net estate is directly relevant to the exercise of the court's discretion as to whether to make...
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