Mr Andrew Banfield v Mr John James McNeil Campbell
| Jurisdiction | England & Wales |
| Judge | Master Teverson |
| Judgment Date | 24 July 2018 |
| Neutral Citation | [2018] EWHC 1943 (Ch) |
| Date | 24 July 2018 |
| Court | Chancery Division |
| Docket Number | Case No: HC-2017-001047 |
[2018] EWHC 1943 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
IN THE ESTATE OF SARAH ELIZABETH CAMPBELL (DECEASED)
AND IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Master Teverson
Case No: HC-2017-001047
Mr Rory Brown (instructed by Howell Jones Solicitors) for the Claimant
Ms Elaine Palser (instructed by Garner & Hancock Solicitors) for the Defendant
Hearing dates: 20, 21 and 22 May 2018
Judgment Approved
This is a claim by the Claimant, Mr Andrew Banfield, for reasonable financial provision from the estate of the late Mrs Sarah Elizabeth Campbell (“the Deceased”) pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, as amended (“the Act”). The Deceased died on 7 October 2015 aged 63 on a holiday flight to the Canary Islands.
Mr Banfield claims as a cohabitant of the Deceased falling within subsection 1(1A) of the Act. In the alternative he claims under subsection 1(1)(e) of the Act as a person who immediately before the death of the Deceased was being maintained in whole or in part by her.
The Defendant, Mr James Campbell (“James”) is the Deceased's only child. By her will dated 6 August 2001 the Deceased left the residue of her estate on trust for James when he attained 25. James is now aged 35. She left Mr Banfield the sum of £5,000 referring to him as her “friend”.
The Deceased was married to Neil Robert Campbell (“Mr Campbell”) on 23 May 1981 when she was aged 28 and he 38. Mr Campbell owned a property 66 Rushetts Close in Long Ditton, Surrey. James was born the following year on 16 September 1982. In 1983 the family moved to 3 Westville Road, Thames Ditton, a three bedroomed semi-detached property.
Mr Campbell died on 27 October 1992 aged 49 of cancer. At the time of his father's death, James was 10 years old and the Deceased aged 40.
Mr Banfield had known the Deceased and Mr Campbell socially through living in the same area. It is not in dispute that a year or two after Mr Campbell's death, a relationship started between Mr Banfield and the Deceased. Mr Banfield says the relationship started in 1993. The Deceased's friend Mrs Gillian Mills refers to a romantic relationship starting between the Deceased and Mr Banfield about two years after Mr Campbell died. Mr Banfield was unmarried and lived with his mother in Tolworth, Surrey. He was at the time working as a Sales Manager at Fullers of Malden, a Ford Dealership. Mr Banfield was almost exactly the same age as the Deceased.
Mr Banfield said in his first witness statement that shortly after their relationship started, he was invited by the Deceased to come and live with her at 3 Westville Road. Mr Banfield said in his first witness statement that by then James was already at boarding school. In fact, as Mr Banfield accepted when giving oral evidence, James did not go to boarding school until he was 17 which would have been in 1999. Prior to that, James attended a local comprehensive school in Hinchley Wood and lived with his mother at 3 Westville Road.
At the outset of his oral evidence, before being cross-examined, Mr Banfield told the court (as I understood him) that between 1993 and 2002 he spent three or four nights with the Deceased and the remaining nights with his mother in Tolworth. James in his first witness statement said that Mr Banfield did not move in to 3 Westville Road until around 2002. James said he lived at home until going to boarding school in 1999 and would have known if Mr Banfield lived there. In his oral evidence, James said that Mr Banfield had started to stay over for a night or two at weekends whilst he had been at Hinchley Wood. He said it was really when he went to boarding school, Mr Banfield started staying for longer. Mrs Mills says in her witness statement that it was only in 2001 that Mr Banfield moved to live at the property with Mrs Campbell. Another close friend of the Deceased, Mrs Carol Muat, said that over the years Mr Banfield started to spend more and more time at the property. She said she only really got to know Mr Banfield when he moved in with the Deceased “in 2001 or thereabouts”.
The impression I gained from the evidence as a whole was that there was not a sudden change when Mr Banfield moved out from living with his mother to living with the Deceased. The process was a gradual one. I am however satisfied that by around 2001 Mr Banfield was perceived by the Deceased's family and friends as having moved in to 3 Westville Road on a permanent footing.
Between 2008 and 2010 Mr Banfield spent a significant proportion of the week looking after his elderly mother. He says he stayed with his mother for several days and nights each week but without giving up his residence at 3 Westville Road. Following the death of his mother in 2010, Mr Banfield lived exclusively at 3 Westville Road with the Deceased.
The relationship between Mr Banfield and the Deceased started off as being a romantic relationship. From 2001 they lived together and shared a bed. Mr Banfield says that in 1999 they became engaged. This is disputed by James who says that the Deceased would not have concealed from him something as potentially significant as an engagement. Mrs Mills and Mrs Muat say in their witness statements that the Deceased had inherited two diamond rings from her mother, that she had the rings re-set and that the Deceased told them Mr Banfield had paid for this to be done. They say she told them as if it were something of a joke that the ring was supposed to be her engagement ring. When they asked if she planned to marry Mr Banfield, they say she replied in an off-hand way “don't be ridiculous I would never marry him”. Mr Banfield insisted they were engaged and that their friends were told. He said they received lots of engagement cards from friends at the time.
The evidence suggests that the Deceased regularly wore this ring. I am satisfied that in the sense of a commitment to each other they became engaged. There do not appear to have been any plans to marry. Mr Banfield said in his first witness statement that he was the one who was reluctant to get married. He said in cross examination he wouldn't have wanted to get married because the house would then have gone to him rather than to James. I found that a rather curious explanation. It would of course have been necessary for the Deceased to make a fresh will but there was nothing to prevent her from leaving the house to James by will. I suspect this explanation was an attempt by Mr Banfield with hindsight to explain why the couple had become engaged if they never intended to marry.
The nature of the relationship changed as Mr Banfield stopped full time work and suffered a number of health problems. Mr Banfield took voluntary redundancy in 2000. He worked for three further years for another firm delivering cars for people involved in road accidents. He gave up work in his early 50's because he was having problems with his knees.
Mr Banfield had and has a number of serious health issues. He suffers from spinal decompression. He underwent a first procedure in 2008. He needed a second procedure in 2009. That left him for a time with the threat of paralysis and thereafter with severe nerve damage. Mr Banfield has longstanding type 2 diabetes and is overweight. These health issues contributed to a somewhat sedentary lifestyle. From around 2011 he found it more convenient and comfortable to sleep downstairs in a reclining chair and only went upstairs in order to take a shower.
The Deceased complained to Mrs Mills and Mrs Muat that she was being required to wait on Mr Banfield hand and foot. When they mooted to her the idea, that she might end the relationship, the Deceased said she did not want to be on her own and needed the companionship. She told Mrs Mills that she “needed to be needed”. Mr Banfield, no doubt often in pain or uncomfortable, was at times irascible and adopted a hectoring tone. Mr Banfield became set in his ways. He based himself in the living room where there was a television leaving the Deceased to see her friends in the kitchen. He preferred to stay in and have a take away curry on Saturday nights rather than to go out. Nevetheless the relationship continued until the sudden and unexpected death of the Deceased when she and Mr Banfield were going away on holiday together.
Section 1 of the Act sets out those who are entitled to apply for financial provision from a deceased's estate. It is accepted on behalf of the Defendant, James, that Mr Banfield has standing to apply under subsection 1(1)(e) but not under subsection 1(1)(ba) of the Act. It was not accepted that Mr Banfield and the Deceased had been living together “as husband and wife” in the two years or more before the death of the Deceased. Reliance was placed on the fact that Mr Banfield slept downstairs from around 2011 onwards and that for sometime prior to that the Deceased and Mr Banfield had slept in separate bedrooms.
In Re Watson [1999] 1 FLR 878, at 883, it was said by Neuberger J, as he then was, that the test is:-
“Whether, in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife; but when considering that question, one should not ignore the multifarious nature of marital relationships.”
The fact that for more than two years before the death of the Deceased, Mr Banfield and the Deceased no longer shared a bedroom and that from around 2011 Mr Banfield because of his health problems slept downstairs on a reclining chair is not in my view...
To continue reading
Request your trial
-
Will And Estate Disputes Update - December 2018
...both bringing and defending 1975 Act claims. Please contact a member of the team for advice. Case Citation: Banfield v Campbell [2018] EWHC 1943 (Ch) Sole beneficiary loses appeal against claim for financial provision by adult Mr Lomax executed a Will in 1997 leaving his whole estate to Ms ......