Negus v Bahouse and Others

Approved Judgment

JUDGE KAYE QC:

Introduction

I have before me, in effect, three applications: (1) An application by Ms Cyd Negus (whom I shall refer to, if I may, as “Ms Negus” or “Cyd”) for a declaration that she has a beneficial interest in property situate at and known as Flat 8 Glen Chess, Loudwater Lane, Rickmansworth, WD3 4HQ (“Flat 8”); (2) Subject to (1), an application by Ms Negus for an order under s.2 of the Inheritance (Provision for Family and Dependants) Act 1975 as amended (“the 1975 Act”) in respect of the Estate of Henry Bahouse, deceased (“the deceased” or “Henry”) who died on 27 ^th March 2005; (3) Subject to (1) and (2), an application by a Mr Gordon Charles Bahouse, the deceased's son, and a Mrs Patricia Bahouse, the deceased's first wife, as Executors of the deceased's Estate, for possession of Flat 8, currently in the occupation of Ms Negus.

Henry left a Will dated 24 ^th January 1996 (“the 1996 Will”). This was admitted to probate on 18 ^th October 2005, probate being granted to his first wife, Mrs Patricia Bahouse, and to his son, Mr Gordon Charles Bahouse (together “the Executors”). In the events which have happened it is not disputed that this Will appointed the deceased's first wife, Patricia, and his son Gordon as his Executors and, after payment of debts and inheritance tax, left £75,000 to each of his siblings, Richard, Gordon and Susan, and the residue to his son Gordon. The gross estate was valued at £2,466,272 and the net estate at £2,147,902. For the purposes of the claim under the 1975 Act it is agreed that the “net estate”, as defined by s.25 of the 1975 Act, is to be treated as having a value of £2.2m. However, this does not include other properties, which I shall mention in a moment.

The present proceedings have had a chequered career. Possession proceedings seeking possession of Flat 8 were commenced first in the Watford County Court by the Executors on 24 ^th May 2005, even before they had obtained a grant of probate to the 1996 will. These proceedings were accordingly stayed until that grant was eventually obtained.

In the meantime Ms Negus defended the possession proceedings basically on two grounds: (1) She was entitled to remain in the flat in which she had a beneficial interest; (2) Alternatively, she was entitled to remain there, because it would or ought to form part of an award to her by way of an order under the 1975 Act.

Following the grant on 10 ^th January 2006, Ms Negus herself commenced a second set of proceedings, also in the Watford County Court, this time against the Executors seeking an order under s.2 of the 1975 Act. It was for these reasons that I said there were, “in effect”, three applications before me. The first two arise out of the possession proceedings, the last two (there is an overlap) out of the 1975 Act proceedings. If Cyd has an interest in Flat 8, then that obviously affects what is to be regarded as the “net estate” for the purposes of the 1975 Act; see s.3(1)(e), 8 and 25 of that Act.

On 22 ^nd May 2006, the two actions were consolidated. On 1 ^st June 2006, they were transferred to the Luton County Court and, on 17 ^th August 2006, they were transferred to the Chancery Division of the High Court.

Initially, the issues included questions whether the deceased was domiciled in England and Wales, whether or not Ms Negus was claiming an interest in other properties owned by the deceased and, whether or not she qualified as a Claimant under the 1975 Act. Most of these issues have gone by the way. The parties have concentrated on the real issues of whether or not Ms Negus has a beneficial interest in Flat 8 and, assuming that she is an eligible Claimant under the 1975 Act as a co-habitee of the deceased, whether or not she succeeds in that claim.

The Evidence

I heard evidence for Ms Negus from a Mr Paul Brooker, a long-standing friend of Henry's, from Ms Negus and a friend of Ms Negus, a Mrs Linda Main.

For the Executors I heard evidence from Mr Michel Manneh, Henry's brother-in-law, from his son, Mr Gordon Charles Bahouse, his brother, Mr Gordon Joseph Bahouse, who produced evidence in the form of an undated and unsigned letter, later replaced or supplemented by a witness statement, from Mrs Evy Bahouse, Henry's daughter-in-law and Gordon's wife, from Mrs Patricia Bahouse, Henry's first wife and Gordon's co-Executor.

I also had a large number of documents in the trial bundles.

The Factual Background

The facts as I find them are as follows.

The deceased had three brothers, Gordon, Harry and Richard and a sister, Susan.

He was married twice, first in 1970 to Mrs Patricia Bahouse, by whom he had a son, also called Gordon, one of the Executors. He was born in February 1971. Patricia and Henry divorced in 1979, but remained friends and in contact thereafter.

Henry then married Pauline Bahouse in 1983, they too were divorced, the decree absolute being pronounced on 7 ^th January 1997.

In 1995, after effectively separating from Pauline (though it appears she did not actually move out of the matrimonial home until December 1995) Henry met Cyd. He was then in his early 50s and she in her late 30s. She was living in rented accommodation in Essex (a two-bedroom maisonette), working as a dental receptionist on an annual salary of about £15,000. She too had been previously married, to a Mr Murray for some 12 years, divorcing in the late 1980s. They had one son, Adam, who was then at college and living with his mother.

Henry and Cyd started dating, but it was not until some time in 1996 that it became serious. In the meantime, on 24 ^th January 1996, Henry had made the 1996 Will.

By this time Henry was a reasonably wealthy individual. He owned and operated his own office furniture company, in which he had a substantial, but minority interest called Directive Office Limited. He liked gambling at casinos and was a member of various exclusive clubs such as The Claremont, Crockfords, The Ritz and others. He also liked to go out to expensive restaurants. He liked travel. He liked being accompanied by attractive and attentive women. In all, he enjoyed something of what might be described by most people's standards as a luxurious and lavish lifestyle, but he could afford it, he did not live beyond his means.

In late 1996 he and Cyd became lovers. He purchased a two-bedroom flat in Glamis Place, London E1, where they used to stay at weekends. They also went on holiday together, the romance blossomed, she found him fun and vivacious. He, no doubt, found her attractive and companionable and good to go out with. He was generous to her, bought her expensive presents including jewellery. He purchased a Landrover Freelander, registered in his name, but for her use. The insurance for this vehicle was for a good many years until 2003, in her name, only reverting to his when he saw a financial advantage in so doing. To all intents and purposes, however, it continued to be her car. He paid for the petrol. (Despite an initial dispute between the parties, the Executors have agreed that she might keep this car, currently valued in the region of £8,500.) She had nothing like his income, but would pay for the odd night out at the cinema or cook him meals.

In about October 1997, he asked her to move in with him to his six-bedroom flat in Sudbury Court Drive, Harrow. She was concerned about her son, Adam, who was then about to start at a new college. They tried to get him into a college near Harrow, but that did not prove possible. They discussed what was to be done and agreed that she would move in with him, giving up her rented accommodation. Adam would stay with her mother, his grandmother, during the week and with them at weekends.

Also at Sudbury Court Drive was Gordon, Henry's son. He had been married to Evy, but they had encountered a temporary upset in their marriage, leading to Gordon staying for a while with his father. Cyd's moving in did not seem to bother him, he kept much to himself or was out a lot, he said. After a while he returned to Evy.

Having moved in, after a very short while Henry asked Cyd to give up work and look after him. She was to become, in effect and in substance, his housewife in all but name. Not unnaturally she was concerned about her future and her security. She had the modest job as a receptionist and although she had not then made any provision for a pension, she had this and a roof over her head to think about. Before moving in with Henry she had begun to make enquiries about buying herself some property. Henry, she said, assured her or reassured her that everything would be okay. She could even have the flat in Glamis Place if anything happened.

Mr Riza QC, for the Executors, made much of the fact that in an early witness statement Cyd had stated that Henry had assured her she would have a roof over her head and, in her later statement this became an income and a roof over her head. I do not think it much matters. I find that he did lead her to believe that her fears over her future security would be met by him. She would have a roof over her head. In return she would give up work and look after him and the home. She agreed.

Having given up work she had no other means of support or income....