Re Coventry, decd.; Coventry v Coventry
|England & Wales
|LORD JUSTICE BUCKLEY,LORD JUSTICE GOFF,LORD JUSTICE GEOFFREY LANE
|18 July 1979
|Judgment citation (vLex)
| EWCA Civ J0718-3
|Court of Appeal (Civil Division)
|1977 C No. 28
|18 July 1979
In the Matter of the Estate of Albert Japes Coventry Deceased
In the Matter of the Inheritance (Provision For Family and Dependents) Act 1975
 EWCA Civ J0718-3
Lord Justice Buckley
Lord Justice Geoffrey Lane
Lord Justice Goff
In The Supreme Court of Judicature
Court of Appeal (Civil Division)
On Appeal from The High Court of Justice Chancery Division
(Mr. Justice Oliver)
MR. A. B. HOLLIS Q. C and MR. MICHAEL STEPHEN (instructed by Messrs. K. E. Davis & Sons, Solicitors, Hayes, Middlesex) appeared on behalf of the Plaintiff (Appellant).
MR. MICHAEL HUTCHINSON Q. C. and MR. G. T. HARRUP (instructed by Messrs. E. D. C. Lord & Co., Solicitors, and South all) appeared on behalf of the Defendant (Respondent).
I have asked Lord Justice Goff to deliver the first judgment in this case.
This is an appeal from a judgment given by Mr. Justice Oliver on 9th November 1973 and entered on 20th December, whereby he dismissed a claim by the appellant for relief under the Inheritance (Provision for Family and Dependents) Act 1975 out of the estate of his deceased father. The matter was originally heard by Master Gowers, who awarded the appellant the sum of £2, 000. The appellant was not satisfied with that figure, and at his request the matter was adjourned to the judge and, as I have indicated, it came before Mr. Justice Oliver. The parties agreed to accept the Master's findings of fact.
The appellant is the only son of the deceased. It is an unhappy feature of this type of litigation that in this case the respondent is his mother, the widow of the deceased, who died on 10th June 1976, and Letters of Administration being granted to her on 29th November of that same year.
It is important to observe that the estate is a small one. Indeed, the net estate is confined to the value of the house and is really less than that since it is obvious that costs have been incurred, some of which must come out of that property.
The house, No. 41 Granville Road, Hayes, Middlesex, was purchased many years ago, in 1935) for the sum of £560, but it is now agreed, owing to inflation, that it is worth £12,000. It has been established that the widow, by reason of her contribution to the expenses of the household in the years when she and the deceased were living together, is entitled in her own right to a one-third beneficial interest in the house. Of course, in considering the questions which arise in this case, one has tobear in mind that she, therefore, has that capital sum, which will in due course, subject to costs, become available as capital in her hands. But one must at the same time keep clear that that is in no sense a share received by her of the deceased's estate. It was her own at all material times.
The deceased and the respondent were married on 26th December 1927. The appellant was born nearly four years later and is now of the age of 48 years. The age of the respondent is 76. In 1950 the appellant joined the Royal Navy. He completed his engagement of seven years, by which time he had expectations of becoming a Chief Petty Officer. In 1957 he returned home, but left again almost immediately, as he says because of bickering between his parents. After a few months, however, he returned to the house, and he lived there for the rest of the lifetime of the deceased and for some time thereafter, when he was forced to leave as the result of an ejection order obtained by the respondent.
The learned judge, at page 5 of the judgment, at G, said: "The deceased was aged 58 in 1957 and was unaccustomed to looking after himself and the plaintiff"- that is, the appellant - "says that, because of this, he concluded that he ought to stay at home, rather than re-engaging for service in the Navy. This is not accepted by the defendant" - that is, the respondent - "and the Master made no finding about it; but whatever the plaintiff's motives may have been he did not, in fact, re-enlist in the Navy but continued for the next 19 years to live with his father".
Very soon after the second return of the appellant to the home, the respondent left. She never returned and there was really no further contact between her on the one hand, and the deceased and the appellant on the other. She applied that sameyear, 1957) to the Magistrate's Court at Stratford for maintenance, but her application was dismissed. We do not know what evidence was given. Master Gowers thought that the position had not been much investigated, and he attached little significance to the failure of that application. There is no finding that the deceased and the appellant, or either of them, in fact drove the respondent out of the house, but the Master did find that they "ganged up on her" and caused her misery which, I think, is a not unimportant circumstance of this case.
During this long separation, no money was paid by the deceased to the respondent. He did not provide her with support in any way and she made no further application against him. She has, during that long time, supported herself in one way or another, and is now living in part upon her pension and in part upon social security payments.
For some four years the appellant ran the home, discharging all the domestic duties, cooking, washing up, shopping and so forth. He paid for food for both of them and on occasions - I think on frequent occasions - he paid for the gas and electricity, and he paid the water rate, although those burdens were sometimes borne by the deceased, who paid the mortgage instalments due upon the house and paid the general rates. The appellant lived in the house rent free.
In 1961 he married. His wife came to live in the house as well, and after that she carried out the duties previously carried out by her husband, and she bought food for the family, including the deceased, again at the appellant's expense. They had three children who also of course lived in the house. Unhappily, in 1975 the marriage broke up and the wife left the home, taking thechildren with her. They were later divorced, and the children remained with her. After the wife left, the appellant carried on as he had done before his marriage.
It seems that the deceased was reluctant to, and certainly did not, spend any material sums on proper maintenance of the house. There is evidence that the appellant suggested borrowing about £2,000 on mortgage for this purpose, but the deceased would not trust him, or would not let him have the deeds for this purpose. Some repairs and decorations were effected, but over this long period they were trifling in the extreme, and the house is of such a deteriorated character that it is not now lettable, and, of course, that failure to maintain the property in which the deceased and the appellant and his wife and family were living has depreciated the value of the respondent's one-third share.
The respondent and the appellant are in modest circumstances, and the appellant is in some financial difficulties occasioned by the debts which he has incurred. He owes arrears of maintenance and costs. He says that the total is including costs, but his divorced wife contends that the figure is about, £600. He is also liable on a judgment for mesne profits in respect of his stay in the house since the death of the deceased. He says that he is a self-employed chauffeur. I confess that I do not altogether understand what that means, but according to the explanation given to us by counsel I gather that he drives someone else's car for his own profit, having made some kind of agreement for sharing profits or paying remuneration to the owner of the car. The learned judge found that his average take-home pay was £52 a week, out of which there falls to be deducted a total of £12 per week for the maintenance of the three children and expenditure on food andelectricity, leaving a balance of £21.70 per week. He had, at one stage at all events, a capital sum of £200 or thereabouts, described as "savings", but which was in fact an income tax rebate which he received after a period of unemployment. On those figures he was on the right side, but it is said that in truth there is a deficit and that his weekly earnings do not meet his expenses. That is largely, if not exclusively, due (a) to the fact that he has purchased, on mortgage, a caravan in which to live, and he has to service the loan, and (b) also to hire purchase payments made in respect of furniture. I shall come back presently to a consideration of the comparative needs of the appellant and the respondent.
I should now refer to some provisions in the Act. In his judgment the learned judge set out all the relevant provisions of the Act, and I do not think I need recite them in the same detail that he adopted. The preamble says that it is "An Act to make fresh provision for empowering the court to make orders for the making out of the estate of a deceased person of provision for the spouse, former spouse, child, child of the family or dependent of that person; and for matters connected therewith". Some argument turned upon the use of the expression "fresh provision".
Then, by section 1 (1): "Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons: (c) a child of the deceased that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant".
Subsection (2) defines the expression "reasonable financial provision".
The learned judge pointed out, and in...
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