Mrs Mussarat Bano Iqbal v Mr Zulfkar Ahmed

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Gross,Lord Justice Jackson,Lord Justice Pill,Lady Justice Arden
Judgment Date29 July 2011
Neutral Citation[2011] EWCA Civ 900,[2011] EWCA Civ 371
Docket NumberCase No: B2/2010/2225
Date29 July 2011

[2011] EWCA Civ 371

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE

(His Honour Judge Bidder QC)

Before: Lady Justice Arden DBE

Case No: B2/2010/2225

Iqbal
Applicant
and
Ahmed
Respondent

The Applicant appeared in person.

The Respondent did not appear and was not represented.

Lady Justice Arden

Lady Justice Arden:

1

This is a renewed application by Mr Ahmed for permission to appeal the decision of HHJ Bidder QC on an application under the Inheritance (Provision for Family and Defendants) Act 1975 that the respondent (that is the appellant's stepmother) should, in substitution for the sum of £8,000 and the right to occupy the former matrimonial home, receive out of her late husband's will firstly the right to occupy the home for life and half the proceeds on sale (the other half being held by Mr Ahmed), the whole of the residuary estate and the agreement of the appellant to pay half the insurance and the structural repairs of the property.

2

The way the order is drafted is as follows.

"The property (92 Penarth Road, Cardiff) shall be held by Mr Jatinder Hans and the claimant, Mrs Mussarat Bano Iqbal, upon trust for the claimant [that is Mrs Iqbal] and the Defendant, Mr Zulfkar Ahmed, as beneficial tenants in common in equal shares upon the statutory trusts of land declared by the Trusts of Land and Appointment of Trustees Act 1996 and upon the following terms and conditions."

I need not read those because I have summarised them. The principal point is that in contrast to the will Mrs Iqbal was to receive a half beneficial share outright in relation to the former matrimonial home. The total estate comprised the house, valued at approximately £115,000, and a residuary estate of some £28,000. There also had to be taken into account a loan of £21,500, which was treated as a gift by the deceased and which was made by the deceased to Mr Ahmed on Mr Ahmed needing a home. The house needed repair of some £30,000. Under the will the claimant had to repair the house and had only a life interest in the property. She herself only had savings of some £3,000 and she lived on state support and pocket money from the deceased of some £5 a week.

3

The judge found that the will failed to make proper financial provision for the respondent, and Mr Ahmed, who is the deceased's son by a first marriage, accepts that there was no reasonable financial provision for the respondent. His reason for bringing this application is to dispute the quantification by the judge of what reasonable provision was needed. The judge took into account the authorities which were cited to him, in particular Re Krubert [1997] Ch 97 and Fielden v Cunliffe [2006] Ch 361. He took account of the fact that the respondent spoke poor English and was unlikely to return to Pakistan and was not well-integrated into the wider society around her. He also took account of the length of the marriage and the fact that the respondent had made a substantial contribution to the household and that the marriage had lasted 22 years. He took account in particular of section 3(2) of the 1975 Act, which, in the case of an application by a spouse requires the court to have regard to the provision which would have been made if, instead of one of the spouses having died, there had been a divorce.

"This subsection applies, without prejudice to the generality of paragraph (g) of susection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(a) or (b) of this Act.

The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to –

(a) the age of the applicant and the duration of the marriage;

(b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring of the family.

In the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce ."

4

The appellant's principal case is that there was no financial need to give the appellant a half beneficial interest and he points out that since she has no children it would simply pass to her family in Pakistan upon her death. There is no particular need, he submits, why she should have that capital asset rather than a life interest. He submits that a life interest could extend to any substitute property which was bought by the trustees of the will out of the proceeds of sale. Alternatively he submits that she could have a rented home, although, as I have pointed out to Mr Ahmed in argument, the judge was not obliged to think in terms of her occupying local authority accommodation even if she was entitled to do so or was entitled to housing benefit, since the question was what was reasonable for her and that would have to take into account that she had been living in the deceased's home and not in accommodation with the benefit of housing benefit.

5

The judge's judgment considers the question of what was reasonable financial provision at some length, with the benefit of the authorities to which I have referred. The judge is concerned with the fact that a mere life interest would not be sufficient for her, given that the required repairs on the house were estimated at approximately £30,000 and he was satisfied that she did not have the capital to fund those repairs. Moreover there was a possibility the house would fall into further disrepair, would have to be sold and that the claimant had no capital reserve to put towards a substitute property of her own. Alternatively she had no property on which to raise a secured loan for the purposes of obtaining a home of her own. He considered that a complete transfer of the property – that is 100% of it – would ignore the wishes and would still leave the claimant without capital necessary to effect repairs to the property, assuming, that is, that she continued to live in it as she wishes to do. Even if the house were to be sold, there would be more capital available to her but still not sufficient in all probability to provide her with a home, having regard to the value of the property and the need for costly repairs.

6

He then went on to say that, giving due weight to all the appropriate factors, including the claimant's resources and means, it would be appropriate to settle a full life interest on the claimant but imposing on the trustees of the will a trust to sell the property, postponed during her life or until she agrees to a sale, with the net proceeds of sale being held by the trustees on equal shares for the claimant and the defendant, and in addition giving her the residuary estate with which she can provide, for instance, for the repairs. In that section it seems to me to be arguable that the judge has not considered the possibility of there being a life interest in the estate which would enable her to have the benefit of any substitute property and which would not require her to have the net proceeds of sale. He does not in terms consider the possibility that the trustees could buy her a substitute property and they would be responsible of course for the structural repairs and insurance and she would be able to live on that. In those circumstances she would not need the capital or any capital share in the house as he has provided. In those circumstances I consider that there is a sufficiently arguable point for me to give permission to appeal on that issue.

7

However, the other main points on the judge's order I would deal with differently. It is said that the judge did not take account of the conduct of the widow towards the deceased and the judge refers to the fact that in a memorandum of wishes the deceased had complained about her conduct. The position is that the judge made various findings about the contribution of the claimant to the household, in particular in paragraph 75. He accepted that she may not have been an easy person to live with, but he did on balance think that she had looked after the deceased during his illness, dealing with his skin condition and ultimately washing and bathing him. That was a question of fact and nothing in the papers suggests to me that that was a finding that the judge was not entitled to make. Accordingly I do not give permission on that point.

8

The other point that I should draw attention to is that Mr Ahmed submits that the widow received approximately 82.5% of the estate if a notional figure is added back for the value of her occupation of the property, but that, as Mr Ahmed fairly points out, was not a figure which was provided to the judge at trial. Accordingly, in my judgment, it is not a figure which the judge can be criticised for not having thought about. In any event, the calculation takes no account of the fact that Mr Ahmed had received a loan and then a gift of the sum of £21,500.

9

In a written submission submitted today Mr Ahmed has referred to a new point, namely the terms of a pre-nuptial agreement made at the time of marriage in Pakistan. As I have explained to Mr Ahmed in argument, while this document may have been relevant at the hearing before the judge, it raises a new point, on which this court would not give permission, because there would have to be evidence to explain the full import of that document....

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