Jelley v Illiffe

Mr. Jelly appeals against the dismissal of his application under the Ineritance (Provision for Family and Dependants) Act 1975 that reasonable financial provision for his maintenance be made out of the estate of Florence Lillian May Iliffe deceased.

He made his application on 19th August 1979. The respondents to this appeal, who are her three children, the first being the sole proving executor of and one of the beneficiaries under her will, met that application with an application to strike it out under the court's inherent jurisdiction on the ground that the evidence in support of it disclosed no reasonable cause of action in that when it came to be considered it would be bound to fail.

The appellant's application had been issued in the Family Division Coventry District Registry (in accordance with R. S. C.. Order 99, which permitted it to be taken out in the Chancery Division also), and on 13th June 1980 the District Registrar ordered "that the action to be struck out under Order 18 rule 19(1)(a)" (sic), and gave leave to appeal. On 28th October 1980 Mr. Justice Bush, sitting at Birmingham, dismissed the appellant's appeal and refused leave to appeal. We have given the appellant leave to appeal and have heard his appeal by which he asks us to restore his originating summons and let his application be heard on the merits.

The District Registrar reached his decision on the evidence of affidavits sworn by the appellant and his two daughters on the one hand, and the deceased's son (the first respondent) and one of her daughters (the third respondent)on the other. The judge had before him a further affidavit from the appellant, and also an affidavit from the proprietress of a seaside hotel, which may have been before the registrar also. There was no oral evidence or cross-examination on the affidavits, but we were informed by Mr. Joffe, for the appellant, that he had no further evidence to put before the court if the matter should go to trial. We have an agreed note of the learned judge's judgment, which he has not had an opportunity of approving. It contains a clear statement of the undisputed facts and of his reasons for dismissing the appeal.

The deceased was the widow of the appellant's brother, who died in 1970. The appellant's wife, who died in 1968, was her sister. In 1971 the appellant went to live with the deceased in a house at 113 Southfield Road, Hinckley. Her husband had left the house to her for her life and after her death to their three children, but by a deed of arrangement in 1970 they conveyed the freehold to her. It was clearly understood by them - and they said by the appellant also, though he denied it - that the house should go to the children after her death. And so it did. By her will made on 22nd May 1972, of which the first respondent and the appellant were executors and trustees, she left all her property, real and personal, to them upon trust to divide her residuary estate between her three children in equal shares. At her death on 8th April 1979 the house, valued at £16,000, constituted by far the greatest part of her estate, which was valued when probate was granted to the first respondent at£17,303.86 net.

Ten days after Mrs. Iliffe 's death, solicitors wrote to the respondents' solicitors a letter before application, which was read by the judge. They wrote:

"We act on behalf of Thomas William Jelley, the common law husband of Mrs. Iliffe. We understand from our client that Mrs. Iliffe died on the 8th April 1979. We understand from our client that he lived with Mrs. Iliffe for eight years and has made substantial contributions to her maintenance and advance ment. He has contributed both to the purchase of furniture at 113 Southfield Road and has carried out certain improvements to the property at his own expense.

In consequence we are of the opinion that the Will does not make any financial provisions for Mr. Jelley and accordingly we regard the situation as one where our client is entitled to make an application under the Inheritance (Provision for Family and Dependants) Act 1975. If such an application were to be made we are satisfied that the courts would provide the provisions for our client to enable him to adequately maintain himself. We understand that the deceased's estate consists of ready cash of somewhere in the region of £2,700 and the freehold property, 113 Southfield Road, Hinckley. Our client's only capital is some £1,800.

We look forward to hearing from you with your client's proposals as to entering into a Deed of Family Arrangement to enable adequate provisions to be made to our client without the necessity of an application being made to the court."

The appellant had suggested to the deceased that he should leave the house where he was living with a married daughter who was willing to keep him; but the deceased told him that she was lonely and frightened. He had known her nearly all her life and he thought he could help to look after her house and garden. So in March 1971 he moved in. In his first affidavit at paragraph 11 he swore:

"I contributed to the home by providing my own furniture in the first instance and subsequently by providing many more articles of furniture and household use fitting carpets curtains tiles a bath and toilet and gates fencing water butt and greenhouse for the outside of the property out of my savings which in 1971 amounted to over £1,000.00."

There was, as the judge said, "some dispute as to whether the appellant was merely a lodger with the deceased or whether, as he said, they were really living as man and wife.

There was the evidence of the hotel proprietress that they shared a double room on holiday together. He was about 64 and she three years younger when they smarted to live together. Whatever the sleeping arrangements in 1971 or later were, they agreed to share the accommodation at her house and thereafter they must be assumed to have lived as the appellant swore they did in paragraph 2 of his first affidavit:

"Immediately before her death and since the time we had commenced to live together the deceased was maintaining me and making a substantial contribution otherwise than for full valuable consideration in money or money's worth towards my reasonable needs in that she was providing. me with accommodation at 113 Southfield Road and a home there and she and I had pooled our respective incomes and latterly our old-age pensions, mine of £20.23 per week and hers of £20.10 per week towards our common living expenses. In addition we received £10,40 per week attendance allowance from 11th November 1978 for the period of the deceased's last illness."

The judge read the relevant provisions of the Act, which are as follows:

l (l) 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) (the relevant paragraph) "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.

(2) In this Act '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.

(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 subsection (4) reads:

"Without prejudice to the generality of paragraph (g) of subsection (1) above," (which is a paragraph which requires the court, on hearing an application, to take into account 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)

"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...