L v M (A Child)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THOMAS,Lord Justice Pill,Lord Justice Chadwick |
| Judgment Date | 19 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1862 |
| Docket Number | Case No: A3 2003/0939 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2003 |
[2003] EWCA Civ 1862
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
CHANCERY DIVISION, CARDIFF DISTRICT REGISTRY,
HH JUDGE MOSELY QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Chadwick and
Lord Justice Thomas
Case No: A3 2003/0939
CF220240
Peter Hamilton (instructed by Woolliscrofts) for the Appellants
Graham Walters (instructed by Cassam & Battrick) for the Respondents
The agreed facts
On 4 th November 1996 Mr Anthony James Murphy (Mr Murphy) and his then wife, Mrs Lisa Murphy, the second defendant and the appellant, effected a policy of life insurance with Royal Life Insurance Limited (Royal Insurance). Mr and Mrs Murphy were named as the policyholders and as the lives insured. The policy was a temporary fixed term policy to run for 25 years; it provided for the benefit to be paid either on the death of the first of the lives insured or on the acceptance by the Royal of a claim for terminal illness by one of the lives insured; there was no endowment element. There was no evidence as to the circumstances in which or the purposes for which the policy was effected
In July 2000 Mr and Mrs Murphy were divorced but payment of the premium continued under the policy.
By August 2000 Mr Murphy had commenced living with the first defendant and second respondent to this appeal, Nicola Holland; they continued to live together until Mr Murphy died on 10 June 2001. On 16 June 2001 the claimant and first respondent was born to Nicola Holland; no provision was made for her by Mr Murphy. On 17 December 2002 she began these proceedings against Nicola Holland (who was granted probate so that the claimant could bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) and against Mrs Murphy, the child of the marriage and Mr Murphy's brother and sister who were named as executors in the last will and testament of Mr Murphy but who had refused to take up grant of probate.
The sole asset in respect of which the claim under the 1975 Act was made was the insurance policy with Royal Insurance.
The claimant claimed that she was a child of Mr Murphy within the meaning of s.1(1) (c) of the 1975 Act and applied under s.2 of the 1975 Act for the court to make in its discretion reasonable financial provision for the claimant.
It was asserted on behalf of the claimant that provision could be made from the proceeds of the policy because it fell within s.9(1) of the 1975 Act. That section provides as follows:
"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."
By reason of the provisions of s.9(4) and s.25(1) of the 1975 Act, it was common ground that there could be a joint tenancy of the life policy.
The trial of the issue
On 30 January 2003 an order was made for trial of the following preliminary issue on agreed facts which I have summarised in the preceding paragraphs.
"Whether the joint life policy effected with Royal Insurance and numbered … is joint property within the meaning of s.9 of the [1975 Act].";
The Judge in a careful judgment given on 10 April 2003 held that immediately before the death of Mr Murphy the benefit of the policy was jointly held and that the benefit of severance was built into it and therefore the joint interest could be severed by notice of severance. The policy therefore fell within the ambit of s.9 of the 1975 Act. He reached that conclusion on the basis that it was right to apply the presumption that where there was co-ownership, the co-owners were presumed to hold the property jointly unless there was an intention that they held it separately. As in his view, there were two co-owners of the benefits under the policy, there was a presumption that they were joint tenants, unless the contrary was proved. He held the contrary was not proved:
"In my view, the conclusion which Mr Hamilton reaches is one of two possible conclusions. The first is that each of the policyholders has a separate interest and that therefore this is not a policy held upon a joint tenancy. The second is an equally valid conclusion – an equally possible conclusion—namely that this was jointly held property, severable, therefore, before death.
The presumption in favour of a joint tenancy applies. That presumption is rebuttable, but the burden of proving that the presumption has been rebutted has not been satisfied. "
Accordingly he decided the preliminary issue in favour of the claimant. The Judge gave leave to appeal.
By framing the issue in the terms set out at paragraph 8, the wrong question was asked of the judge. The terms of the preliminary issue asserted that the policy was a joint policy; from that assertion the Judge proceeded to consider the issue on the basis that there was co-ownership of the benefits under the policy. However, the issue framed in those terms begged the essential question as to whether the rights under the policy were, as a matter of construction, joint rights. It was accepted before this Court that the issue should have been framed:.
"Was the deceased, immediately before his death, beneficially entitled to a joint tenancy of the right under the policy to benefit from his death before the death of Mrs Murphy?"
Thus the sole issue was whether, as a matter of construction of the life policy, the right to the death benefit under the policy was a jointly held right in which the interests could be severed by a notice of severance or whether Mr Murphy and Mrs Murphy held separate rights to the death benefit. If the right was joint, then notice of severance could have been given by either of the policy holders; once given the right to the death benefit under the policy would be a right to which both would have been beneficially entitled and thus the death benefit have been payable to the estate of Mr Murphy as well as to Mrs Murphy.
The contentions of the parties
It was contended on behalf of Mrs Murphy that there were no joint rights to the death benefit; it was intended that the sum payable on death be paid out to the spouse that survived. Upon the death of the first of them, the other had the sole right to the sum payable on that death. Mr Murphy's right to the sum payable on death as a policy holder under the policy was a right only to receive that sum on the death of Mrs Murphy if that occurred before his death; Mrs Murphy was similarly solely entitled to the sum on his death, if that occurred before hers. The simple contention was that as the policy was not an endowment policy and had no surrender value, it cannot have been intended that the rights were joint rights as there was no point in benefiting the estate of the deceased as well as the survivor; the intention must have been that the survivor was to enjoy the sum payable on death and nothing was to be paid to the estate of the deceased spouse. The right to the death benefit was always intended to belong to the survivor. It was, however, accepted that the terminal illness benefit was held jointly.
The claimant contended that it cannot have been intended that the rights to the terminal illness benefit and the right to the death benefit be treated differently. As it was accepted that the terminal illness benefit was held jointly, it followed from that and from the terms of the policy that both benefits were held jointly.
The terms of the policy
As the issue is solely one of construction, it is necessary to refer to the terms of the policy in some detail. It was a standard form policy known as a "Lifewise policy" with standard conditions and a schedule containing the information specific to the policy.
i) The material parts of the definition clause of the policy provided as follows:
The Benefit The fixed sum stated in the Policy Schedule as may be decreased in accordance with the Policy Schedule
The Life Assured The Person(s) named as the Life Assured in the Policy Schedule.
The Policyholder The Person(s) named as the Policyholder in the Policy Schedule or his executors, administrators or assignees.
The Qualifying Event either
(1) The death of the Life Assured during the Term; or
(2) The acceptance by the Company of a claim for Terminal Illness of the Life Assured during the Term but excluding the 12 months preceding the Termination Date.
ii) In the Policy Schedule the Policyholders were identified as Mr Murphy and Mrs Murphy and the Life Assured were Mr Murphy and Mrs Murphy. The Policy Schedule described the insurance as "Temporary Fixed Term" and the Benefit was "£100,000 without profits". It was also stated that the policy had no surrender value.
iii) The material terms of the policy were
2. General
2.1 This policy is a temporary assurance policy providing the Benefit payable on the first to occur of the...
To continue reading
Request your trial
-
Miah v The National Mutual Life Association of Australasia Ltd
...above n 1. 5 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [61]. 6 This was accepted in Murphy v Murphy [2003] EWCA Civ 1862, [2004] Lloyd's Rep IR 744 at [15]–[16] and [31]; and Lim (A Child) v Walia [2014] EWCA Civ 1076, [2015] 2 WLR 583 at [19]. It has b......
-
Lim (an Infant) v Walia
...Dingmar[2006] EWCA Civ 942, [2006] 2 FCR 595, [2007] 2 All ER 382, [2007] Ch 109, [2006] 3 WLR 1183, [2007] 1 FLR 210. Murphy v Holland[2003] EWCA Civ 1862, [2004] 1 FCR Powell v Osbourne[1993] 1 FCR 797, [1993] 1 FLR 1001, CA. AppealNavpreet Singh Walia appealed, with permission to appeal ......
-
Miah v The National Mutual Life Association of Australasia Ltd
...which Mr Knight filed and which accurately summarise the current state of the plaintiff's statement of claim. 8 Murphy v Murphy [2003] EWCA (Civ) 1862 at [17]. 9 Above n 10 At [20]. 11 (emphasis added). 12 For instance, in John Birds, Ben Lynch and Simon Milnes (eds) MacGillivray on Insura......
-
Kalabo Investments Limited v. The New India Assurance Company Limited
...is a composite one, the Appellant relied on the following extract from Lisa Murphy & Ors v Caithin Murphy (a child) and Nicola Holland [2003] EWCA Civ 1862 Lord Justice Thomas said at “It is not uncommon in the insurance market for insurers to use policy forms that are not specifically tail......
-
Table of Cases
...Henry v Henry [2010] UKPC 3, [2010] 1 All ER 988, [2010] WTLR 1011, [2010] 2 P & CR DG8 162 Holland v Murphy; sub nom Murphy v Murphy [2003] EWCA Civ 1862, [2004] WTLR 239, [2003] All ER (D) 410 (Dec) 171 Holtham v Arnold (1986) 2 BMLR 123, ChD 140, 151 Hornal v Neuberger Products Ltd [1957......
-
Jointly Owned Assets and Assets Held on Constructive Trust
...genuinely held by them as joint tenants or whether each had a sole right to the sum assured on death (see Holland v Murphy and Others [2003] EWCA Civ 1862, where it was held that the policy was held by the policyholders as joint tenants). Where property is owned jointly by the deceased and ......