Re Fullard, deceased

JurisdictionEngland & Wales
JudgeLORD JUSTICE ORMROD,MR. JUSTICE PURCHAS
Judgment Date30 January 1981
Judgment citation (vLex)[1981] EWCA Civ J0130-1
CourtCourt of Appeal (Civil Division)
Docket Number81/0026
Date30 January 1981

[1981] EWCA Civ J0130-1

IN THE SUPREME COURT OF JUDICATURE

THE COURT OF APPEAL

(On appeal from Birmingham District Registry)

Royal Courts of Justice,

Before:

Lord Justice Ormrod

Mr. Justice Purchas

81/0026

Re: Fullard, Deceased
Re: Inheritance (Provision for Family and Dependents) Act, 1975

MR. R. REID, Q.C. (instructed by Messrs. Stanleys & Simpson North, London Agents for Messrs. Rutherfords of Birmingham) appeared on behalf of the Appellant.

MR. D. McCONVILLE (instructed by Messrs. Philip Baker-King & Co. of London) appeared on behalf of the Respondent.

LORD JUSTICE ORMROD
1

This is an appeal by a former wife, who is the plaintiff in proceedings under the Inheritance Act 1975, asking for provision to be made by the court for her out of the estate of her former husband now deceased. The case is of some importance because it seems to be the first case to reach this court where the applicant is a former spouse—that is somebody who comes under Section 1 (1) (b) of the 1975 Act. It is therefore of some significance.

2

The matter was heard at length by Mr. Justice Bush and on 17th November 1980 he dismissed the application because (in his own words) he held that:

"No financial provision for the former wife applicant was reasonable financial provision."

3

Perhaps it would have been neater to put it round the other way and say that he held that it was not reasonable for financial provision for the former wife to be made having regard to all the circumstances of the case.

4

In approaching these applications by a party who has been divorced, I think it is important to bear in mind two things. First, the history of the legislation and, secondly, the fact that proceedings of this kind are an open invitation to dissatisfied (and perhaps spiteful) spouses to start proceedings which they cannot lose, because the practice seems to be to order the costs in any event to be paid by the estate so, win or lose, the applicant diminishes the estate and therefore diminishes the amount the beneficiary receives. This is a serious consideration in these cases.

5

To go to the history briefly, the 1975 Act is a composite of the former Family (Inheritance Provisions) Act and what was originally Section 3 of the Matrimonial Causes (Property) Act 1958. Section 3 provides:

"Where after the commencement of this Act a person dies and is survived by a former wife of his who has not remarried, the former wife may apply to the High Court for an order under this section on the ground that the deceased has not made reasonable provision for her maintenance after his death."

6

Sub Section 2 provides:

"If on an application by a former wife under this section the court is satisfied:

(a) That it would have been reasonable for the deceased to make provision for her maintenance, and

(b) That the deceased has made no provision or had not made reasonable provision for her maintenance, the court may order such reasonable provision for her maintenance as the court thinks fit shall be made out of the nett estate of the deceased……"

7

and so on.

8

It is very important to remember that, at the time that section first came into existence, the court had no power to deal with capital adjustments between spouses. At that period the court's powers were greatly restricted in relation to ancillary relief because they could not deal adequately with the situation when (usually) a husband came into a substantial capital sum, either because he earned it or inherited it or for some other reason, after the ancillary relief order had been made. So there were many cases in and around that time where ex-wives were in receipt of periodical payments which ceased on the death of their former husbands and were placed in a position of extreme difficulty. There is no doubt that that section was passed originally to give the court power to deal with that sort of situation when it arose. With the coming into effect of the 1970 Matrimonial Proceedings Act with the new powers to make property adjustment orders and very much freer power to order lump sums, the court now has power to make appropriate capital adjustments as between spouses after divorce and those powers, although they are not necessarily comprehensive—and that is plain from section 15 of the 1975 Act which clearly contemplates that proceedings may be taken under the Inheritance Act after divorce—nonetheless the number of cases in which it would be possible for an applicant to bring himself (or herself) within the terms of Section 2 of the Inheritance Act, in my judgment, would be comparatively small. Where the estate—like this one—is small, in my view the onus on an applicant of satisfying the conditions of Section 2 is very heavy indeed and these applications ought not to be launched unless there is (or there appears to be) a real chance of success, because the result of these proceedings simply diminishes the estate and is a great hardship on the beneficiaries if they are ultimately successful in litigation. For that reason I would be disposed to think that judges should reconsider the practice of ordering the costs of both sides in these cases to be paid out of the estate. This is probate litigation; this is something quite different. I think judges should look very closely indeed at the merits of each application before ordering that the estate pays the applicant's costs if the applicant is unsuccessful.

9

In my judgment Section 2, which is applicable of course to all classes of applicant under the Act, provides quite clearly and simply for the conditions under which the court may exercise its powers under the later section of the Act. Sub-Section (1) of Section 2 reads:

"Subject to the provision of this Act, where an application is made for an order under this section, the court may, if it is satisfied 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 will, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders."

10

It therefore is a condition precedent to the exercise of the court's powers under this Act that the court should be satisfied that the will (or the intestacy) did not make reasonable financial provision for the applicant.

11

Section 3 provides that:

"In determining whether 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 such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters."

12

The following matters' are set out as guide lines. It is not necessary to read them at length. They are in a sense the obvious ones. But sub-paragraph (g) is important because that reads:

"….any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant."

13

So that gives the court the widest possible powers to take into account any matter which is relevant. Plainly where the application is made by an ex-wife (or ex-husband) of the deceased, the fact that the parties have been divorced and the result of that divorce in financial terms is plainly another matter which is relevant—and which is highly relevant.

14

The whole of these sections were considered at great length and in meticulous detail by Mr. Justice Oliver (as he then was) in re: Coventry, deceased. His judgment was subsequently examined with meticulous care in this court, mainly by Lord Justice Goff. The case is reported in (1980) 1 Ch. Div., 461. There was no difference of opinion whatever between the three members of this court. Lord Justice Goff, in giving the final judgment of the court, analysed the matter in great detail—approving in every respect the judgment of Mr. Justice Oliver in the court below. One matter, which I need not refer to in any depth, which exercised both Mr. Justice Oliver and the Court of Appeal was the meaning to be attributed to the word 'maintenance' where it occurs in the definition of reasonable provision in such cases in Section 2. At page 487 Lord Justice Goff came to consider the question of whether or not the disposition made reasonable provision for the applicant. Mr. Justice Oliver had been criticised because it was said that he introduced the question of moral obligation into his consideration at this point, but that criticism did not commend itself to Lord Justice Goff, who said at (g) on page 487:

15

"It is true that he said a moral obligation was required, but in my view that was on the facts of this particular case, because he found nothing else sufficient to produce unreasonableness."

16

The learned judge in the court below explained this proposition time and time again. That is clearly right. It is impossible to answer the question, is the provision reasonable or alternatively is it reasonable to make no provision, without considering what ought to have been done for the applicant. Once one introduces the word 'ought', one inevitably introduces in some way or other some moral question. In the case of re: Coventry the learned judge, Mr. Justice Oliver, was saying the only way in which it could be argued that the fact that no provision was made for the son was unreasonable was by finding a moral obligation of some kind to make such provision. This case is very close to that same proposition. For the sake of convenience, I would refer briefly to what Lord Justice Geoffrey Lane (as he then was) said at page 492,...

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8 cases
  • Shovelar and Others v Lane and Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • July 12, 2011
    ...one casts about for other analogous claims there are claims under the Inheritance (Provision for Family and Dependants) Act 1975. In In Re: Fullard, dec'd [1982] Fam. 42 Ormrod L.J. commented at p. 46: "Where the estate—like this one—is small, in my view the onus on an applicant of satisfy......
  • Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Estate of Graeme William Box
    • Australia
    • Supreme Court of ACT
    • May 28, 2014
    ...[1967] VR 881 Re Blood [1983] 1 Qd R 104 Re Cutts (deceased) [1969] VR 254 Reeves v Berge Phillips (1982) 7 Fam LR 940 Re Fullard [1981] 2 All ER 796 Re Fulop (deceased) (1987) 8 NSWLR 679 Re Salathial [1971] QWN 18 Robertson v Robertson [1930] QWN 41 Russell v Scott (1936) 55 CLR 440 Saun......
  • O'Rourke (Deceased), Re ; Cameron v Treasury Solicitor
    • United Kingdom
    • Court of Appeal (Civil Division)
    • July 2, 1996
    ...to the facts of this case and it sets out the sole issue on this appeal. That question was described by Ormrod LJ in re Fullard decd [1982] Fam. 42 as the 'condition precedent' or the 'first hurdle' in the two stage process. 11 In considering the relevant criteria under section 3 to which t......
  • Barrass v Harding
    • United Kingdom
    • Court of Appeal (Civil Division)
    • June 27, 2000
    ...the disposition was such as to make reasonable financial provision for the applicant was posed by Ormrod L.J. in In re Fullard (Deceased) [1982] Fam. 42. That was a case of a former wife in which the judge found that it was not reasonable for financial provision for the former wife to be ma......
  • Request a trial to view additional results
2 books & journal articles
  • Family Provision
    • Jamaica
    • Non-Contentious Probate Practice in the English Speaking Caribbean
    • September 21, 2013
    ...13 W.I.R. 470. 55 (1968) 13 W.I.R. 297. 56 See on this s,41(5) Matrimonial Proceedings and Property Act Ch. 45:51 No. 2 of 1972. 57 [1981] 2 All E.R. 796. 58 Ibid. 59 [1991]1 All E.R. 236. 60 See Jelley v Iliffe [1981]2 All ER 29 and Bishop v Pumley supra at n. 59. 61 [1981] 2 All E.R. 29 a......
  • LINES DRAWN IN BLOOD: A COMPARATIVE PERSPECTIVE ON THE ACCOMMODATION OF BLENDED FAMILIES IN SUCCESSION LAW.
    • Canada
    • June 1, 2020
    ...to provide"). (87) (UK), 1 & 2 Geo VI, c 45. (88) [1955] 3 All ER 248 at 249, [1955] 1 WLR 1105 (CliD). See also Re Fullard, [1981] 2 All ER 796 at 800, [1982] Fam 42 (CA Civ) (where Ormond LJ acknowledged the moral dimension required by the decision process demanded by the legislation)......

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