Official Solicitor to the Senior Courts v Yemoh and Others
| Jurisdiction | England & Wales |
| Judgment Date | 15 December 2010 |
| Neutral Citation | [2010] EWHC 3727 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: GLC 194/10 |
| Date | 15 December 2010 |
[2010] EWHC 3727 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Before:mr A Elleray Qc
(sitting as a Judge Of The High Court)His Honour Judge Hull
Claim No: GLC 194/10
The Claimant did appear and was represented by Richard Wilson
The Defendant did not appear and was unrepresented
Approved Judgment
JUDGMENTJUDGMENT
MR ELLERAY QC:
This is my judgment on an application by the Official Solicitor, who has been represented before me by Mr Wilson.
The late Benjamin Kodzo Yemoh died on 20 September 1981, domiciled in Ghana. He died intestate. At the date of his death he owned real property in England at 123 Dunford Road, Haringey and 38 Westway, London NW10 ("the properties"). He also left here some limited personal property, in particular some cash in bank accounts.
Letters of administration in relation to the deceased's English estate were granted to Edmund Yemoh and Patience Frimpong on 17 May 1985. Proceedings were issued against them in 1996 ("HC/1996/03779") by some beneficiaries. In those proceedings and on 29 February 2000, Master Moncaster appointed the Official Solicitor as Judicial Trustee of the estate of the deceased.
The properties have been sold and the current value of the net residuary estate is £388,725.94, subject to costs.
The Official Solicitor seeks guidance from the court in relation to a number of questions which have arisen, so as to assist conclusion of the administration of the estate and its distribution to those properly entitled. The questions flow from the circumstance that the deceased was survived by a number of polygamous spouses and many children by them. The guidance is sought under section 1(4) of the Judicial Trustee Act 1896.
As explained by Mr Owusu, a Ghanaian lawyer from whom the Official Solicitor has obtained expert evidence, marriages were, and indeed are, relevantly recognised in Ghana in relation to marriages claimed in accordance with Ghanaian Customary Law. Eight women, two through their estates, have claimed they had such marriages with the deceased. This month, Ghanaian lawyers acting for some other such claimants have put in issue the claim made on behalf of Mrs Margaret Anorkor Adams. Subject to doubts in relation to her claim, the Official Solicitor has no reason to doubt the other seven claimed Customary Law marriages. In relation to the claim of Mrs Adams, the Official Solicitor is going to consider separately how best he would seek issues in relation to her marriage to be resolved.
On behalf of the Official Solicitor, Mr Wray has drawn up a schedule of those claiming to be widows of the deceased and of those claiming to be his children. The first defendant is one such child. He has helped the Official Solicitor identify children, thus his full or half brothers and sisters, and helpfully attended before me to give such assistance to the court as he could. The Official Solicitor has been receiving in respect of children Ghanaian birth certificates acknowledging the deceased's paternity. Some such certificates in relation to the scheduled children remain outstanding. Nonetheless Mr Owusu has assisted the court in casting some doubt on the reliability of birth certificates in Ghana. It appears to the Official Solicitor, and I agree, that he can reasonably rely on the evidence he has already obtained in relation to the scheduled children and treat and proceed on the basis that the schedule is accurate and reasonably identifies the many children of the deceased.
Intestacy
By section 46(1) of the Administration of Estates Act 1925 and so far as relevant where an intestate is survived by a spouse and issue:
"The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, namely;—
(i) if the intestate leaves a spouse, then in accordance with the following table:
If the intestate-
(2) leaves issue…
the surviving spouse…shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a fixed net sum, free of death duties and costs, to the surviving spouse…with interest thereon from the date of the death…at such rate as the Lord Chancellor may specify by order until paid or appropriated, and, subject to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held-
(a) as to one half upon trust for the surviving spouse…during his or her life, and, subject to such life interest, on the statutory trusts for the issue of the intestate, and
(b) as to the other half, on the statutory trusts for the issue of the intestate."
The prescribed fixed net sum at the date of the death of the deceased in 1981 was £40,000.
Section 47 of the 1925 Act deals with the statutory trusts of the residuary estate where held for the issue of the intestate. It provides that
"the same shall be held upon the following trusts, namely:—
(i) In trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate, who attain the age of eighteen years or marry under that age…and for all or any of the issue living at the death of the intestate who attain the age of eighteen years or marry…under that age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking…"
The first question posed by the Official Solicitor is whether the deceased's polygamous marriages under the Customary Law of Ghana are recognised for the purposes of succession to his real estate in England and Wales.
That involves, in effect, the question whether the surviving polygamous spouses are surviving spouses for the purpose of section 46 of the 1925 Act.
In "The Law and Practice of Intestate Succession" (3 rd Ed) by Sherrin and Bonehill, it is suggested at paragraph 16–017 that the answer to this question does not appear to have been the subject of direct authority. The authors nonetheless submit, as they put it, with some confidence, that the answer should be in the affirmative.
In the context of the Inheritance (Provision for Family and Dependants) Act 1975, it has been held that the wife of a polygamous relationship is a "wife of the deceased" within the meaning of section 1 of that Act ( Re Sehota (Deceased) [1978] 3 All ER 385 per Foster J). The judge in Sehota considered historical public policy objections, in this country to polygamy, as set out by Lord Penzance in Hyde v Hyde [1886] LR 1 P & D 130. Lord Penzance concluded that public policy prevented the seeking of matrimonial relief from our courts by a polygamous spouse. He expressly limited such public policy concerns to the issue of matrimonial relief and was not addressing succession rights. In the events which have happened, Parliament was to intervene by section 43 of the Matrimonial Causes Act 1973 to change the position where polygamous spouses and matrimonial relief are concerned.
In Baindail v Baindail [1946] P & D 122, the Court of Appeal recognised that a Hindu polygamous marriage gave the respondent the status of a married man in accordance with the law of his domicile, and thus in that case, found that his pretended marriage with the petitioner in this country, he already having a marriage recognised in the law of his domicile, was null and void. Lord Greene MR at page 127 considered whether the status of the Hindu marriage recognised in the Indian law of domicile, should be recognised in this country:
"English law certainly does not refuse all recognition of that status. For many purposes, quite obviously, the status would have to be recognized. If a Hindu domiciled in India died intestate in England leaving personal property in this country, the succession to the personal property would be governed by the law of his domicile; and in applying the law of his domicile effect would have to be given to the rights of any children of the Hindu marriage and of his Hindu widow, and for that purpose the courts of this country would be bound to recognize the validity of a Hindu marriage so far as it bears on the title to personal property left by an intestate here; one can think of other cases.
Lord Maugham L.C., who delivered the leading opinion of the Committee of Privileges in Lord Sinha's case said this: 'On the other hand it cannot, I think, be doubted now, notwithstanding some earlier dicta by eminent judges, that a Hindu marriage between persons domiciled in India is recognized in our courts, that issue are regarded as legitimate and that such issue can succeed to property, with the possible exception to which I will refer later'…"
The exception to which Lord Maugham was referring concerned real estate before the enactment of the Law of Property Act 1925 and questions as to the status of an heir in context. It does not appear to me that Lord Maugham, in referring to that exception, was suggesting that, for all purposes where real property is concerned, there might be difficulty recognising the legal status of widows or issue of polygamous marriages recognised in the country of the domicile of the intestate. To continue citing from...
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Intestacy Rules
...by a same sex couple under the Civil Partnership Act 2004 as amended. In Official Solicitor to the Senior Courts v Yemoh & others [2010] EWHC 3727 (Ch), [2010] All ER (D) 213 (Dec), the court held that two or more persons could fall within the category of ‘surviving spouse’ for the purpose ......