Re Besterman (Deceased)
|England & Wales
|LORD JUSTICE FOX,LORD JUSTICE OLIVER
|18 October 1982
|Judgment citation (vLex)
| EWCA Civ J1018-1
|Court of Appeal (Civil Division)
|18 October 1982
In The Matter of The Estate of Theodore Deodatus Nathaniel Besterman Deceased
In The Matter of The Inheritance (Provision for Family and Dependants) Act 1975
 EWCA Civ J1018-1
Lord Justice Oliver,
Lord Justice Fox
Lord Justice Robert Goff
1977 B. No. 5319
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from His Honour Judge Mervyn Davies, QC,
sitting as a judge of the Chancery Division -
(now Mr. Justice Mervyn Davies))
Royal Courts of Justice
Mr. ROBERT JOHNSON, QC, and Mr. DIRIK JACKSON (instructed by Messrs. Gouldens) appeared on behalf of the Appellant (Plaintiff).
Mr. C.A. BRODIE, QC, and Mr. SPENCER MAURICE (instructed by Messrs. Morrell Peel & Gamlen, Oxford) appeared on behalf of the Respondents (Fourth Defendants).
The First, Second and Third Defendants did not appear and were not represented.
This is an appeal by the plaintiffs from an order of His Honour Judge Mervyn Davies, QC (as he then was) sitting as a judge of the Chancery Division, in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975. The plaintiff, now aged 66, is the widow of the late Dr. Theodore Besterman. He married her on 29th December 1958, when he was 54 and she was 42, he having been then twice previously married. Thereafter they lived together, first in Switzerland and then in London and at Thorpe Mandeville in Oxfordshire, until his death at the age of 71 on 10th November 1976.
There is a conflict of evidence about whether the marriage was altogether happy—he was, on any showing, an extremely difficult man to live with—but happily it is unnecessary to say anything more about that, since both sides accept that this is not to be treated as a case depending on matrimonial conduct at all and that there is no reason for assuming anything other than that the marriage was a contented one and that the plaintiff was a faithful and dutiful wife to whom the deceased owed all the duties ordinarily arising from the married state.
The deceased left a Will dated 29th July 1973 and that was proved (together with a codicil) on 7th September 1977. The codicil merely altered the appointment of executors and it does not matter for present purposes. The defendants are the three executors (who do not appear in this court) and the University of Oxford (which, as we shall see, was the major beneficiary under the Will).
The deceased's primary and absorbing interest was in l8th Century French Literature and in particular the writings of Voltaire and Rousseau and the philosophy known as the Enlightenment. It was to that study that he devoted the major part of what has proved to be a very extensive estate and he made very little provision for the plaintiff.
The following are, in summary, the dispositive provisions of the Will First of all, there was a bequest to the widow of what I may call ordinary domestic and personal ornamental chattels. Then there was a bequest to the British Museum of working copies of his own writings—a bequest which, I should add, has been disclaimed. Then there was a bequest of £100,000 nominal of War Stock to his executors on trust for the plaintiff for life with the remainder on the trusts of the residue. That, of course, produces an income of about £3,500. Then there was recited an agreement with the Taylor Institute of Oxford to accept the testator's collection of art books on trust to offer them to the Ashmolean Museum at half the agreed value for probate. That was followed by a bequest to Oxford University of the collection on trust to let the plaintiff have the use of any 12 drawings for her life and, subject thereto, either to retain the collection or to sell it to the Museum, and if that sale was not completed within an agreed period to sell it for the best price obtainable and to hold the proceeds on the trusts of the residue. Finally, there was a residuary bequest to the University on trust to be used to complete the research on Voltaire and Rousseau and other authors of the Enlightenment "and for such other relevant purposes as the Governing Body of the Taylor Institute shall think fit". It should be mentioned that in construction proceedings in the Chancery Division that residuary bequest has been held to create a valid charitable trust. That was done by an order of Mr. Justice Slade (as he then was) on 21st January 1980.
The deceased was not just a wealthy man. He was a very wealthy man and that is an important factor to be borne in mind in considering what is a reasonable provision for his widow. His estate was well over £1 million. Even after allowing for a massive back duty claim and moneys paid under an interim order it amounts to only a little under £1 1/2 million, which, owing to the charitable nature of the ultimate beneficiary, is happily not liable to be eroded by the payment of capital transfer tax.
On 21st July 1980 Master Gowers made an interim order in these proceedings for payment to the widow of a capital sum of £75,000 and of income pending the hearing at the rate of £11,500 a year in addition to the War Loan income, plus an order for payment by the executors of a sum of £3,500 per annum for the upkeep of Thorpe Mandeville House until sale. The purpose of that capital provision was to enable the widow to buy a house of her own and to vacate Thorpe Mandeville House so that it could be sold. She, as might be expected, is accustomed to a higher than ordinary standard of living and it is not, I think, to be held against her that she in fact chose to purchase, and expresses herself as quite content with, what is, in fact, a very modest house for someone in her position.
The net assets of the estate are set out on page 6 of the transcript of the learned judge's judgment and were at that time as follows. They amounted to £1.37 million made up of three elements: Thorpe Mandeville House, £350,000; chattels, £787,000; and investments, £266,000. The learned judge continued: "The chattels element comprises the books, writings, etc., intended in cash or kind for the Taylor Institute. So taking that element from the global sum leaves £583,000".
An updated valuation at 8th October 1982 puts the assets at £1,436,280, of which £700,000 is in the form of liquid assets, quite apart from the valuable art books referred to in the Will which, if sold, would provide over another £430,000.
It is unnecessary to dwell in any detail on the married life of the plaintiff and her husband. At the date of their marriage he was the Honorary Director of the Voltaire Institute Museum in Geneva and they lived in Voltaire's former residence where they were in the centre of a good deal of social activity. In 1964 he took up a second residence in what appears to have been a very luxurious flat in Pall Mall. In 1970, however, he fell out with the City authorities in Geneva, who were defraying the running costs of the Institute, and he then transferred his activities to Oxford, buying a large and luxuriously appointed house at Thorpe Mandeville which constituted the matrimonial home up to the date of his death. There was evidence which suggested that the plaintiff was kept on a fairly tight rein so far as housekeeping money was concerned but a full domestic staff were kept and she obviously enjoyed an extremely high standard of life and engaged in a good deal of social activity.
She had and has, however, very little money of her own—apart from such provision as is made for her out of the deceased's estate she has only a few personal chattels and her state widow's pension amounting to about £400 a year (that is much below the normal level because of the couple's relatively short period of residence in the United Kingdom). For the widow of a millionaire, accustomed to the sort of standard of living that I have described, the testamentary provision of personal chattels and an income for life of £3,500 was clearly not a reasonable provision and the University has very properly acknowledged this throughout. The question which had to be determined by the learned judge, therefore, was not whether further provision should be made but what should be the extent of it and what form it should take.
Before I turn to the terms of the order which he made and which is now appealed from it will be convenient to state a little of what has occurred since the testator's death. The house at Thorpe Mandeville was, as I have said, large and luxurious and fully staffed and you cannot simply close such a place down in a matter of a few days or weeks. The plaintiff was, in a figurative sense, locked in there because she had no money of her own to provide a home for herself and she continued to live there, the executors paying the outgoings and continuing her housekeeping allowance of £60 per week. Altogether there was expended in this way, out of the estate (but including the income to which the plaintiff was entitled under the Will), a sum of £31,000-odd between the deceased's death and June 1980 when the interim order was made. Some of this consists of moneys paid out of capital (because the estate was then unrealised) to supplement the obviously inadequate income which the plaintiff was receiving under the Will and some consists of moneys paid either out of capital or out of income in discharge of servants' wages and other outgoings of the house.
After the interim order the plaintiff applied the capital made available to her in...
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