Re Gregory, decd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE WINN,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 28 May 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0528-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 May 1970 |
[1970] EWCA Civ J0528-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Harman
Lord Justice Winn
Lord Justice Fenton Atkinson
In the Matter of the Inheritance (Family Provision) Act 1938
and
In the Matter of the Estate of Herbert William Gregroy deceased
MR. W.A. BLACKBURN, instructed by Messrs. Owen, White & Catlin, appeared for the Appellant (Applicant).
MR. J.R. MACDONALD, instructed by Messrs. Morrison & Master (Swindon), appeared for the Respondents (Respondents).
This is a widow's appeal under the Inheritance (Family Provision) Act as now amended which was heard in the Swindon County Court; the learned judge decided against the widow's claim, although no provision had been made for her out of the testator's will.
Such of the facts as we do know are sufficientlyremarkable; the most remarkable of them I suppose is that these people have not lived together for 41 years. I do not think the husband ever fully supported her in his life. He used to send her a pound a week at one time. He has a daughter and has never provided for her at all.
The learned County Court judge decided such of the facts as are known and came to the conclusion that it was not unreasonable on the testator's part to provide her with nothing. As to that, clearly there is jurisdiction in the court to make provision in a case of this sort where no provision has been made, because, if you make no provision, it stands to reason that you cannot have made reasonable provision. That is, so to speak, one aspect.
We then come to the other side of the picture and say: Was the fact that he did not make provision a reasonable act on his part? I put it like that because I think that is the right way to put it. We have had a lot of discussion as to whether the Act means one thing or another and I do not think really it amounts to anything in this case. You must look so far as you can at the whole of the long and fragmentary history of the marriage and come to a conclusion as to whether his act has been a reasonable one, whether there was an obligation on him when the time came to provide for this woman. The County Court judge has decided that there was not an obligation and, as we know, these discretions vested in the tribunal which tried the case are very much to be observed, unless there is something obviously wrong about them. Lord Justice Romer observed in Howell's case, to which we were referred, that in a small case of this sort be very slow to deprive the testator of what is fundamentally his power to dispose of his own money in his own way. This was an invasion of the rights of English testators which was a novelty in 1938 when it was made, and it was a jurisdiction which I think Mr. JusticeWynn-Parry observed in one of the cases ought to be sparingly used. It is less sparingly used than it was because the boundaries of the court's jurisdiction have been very much widened and enlarged, but it still remains that the court is invading what is normally a testator's privilege to dispose of his own money in his own way.
I must say a little about the facts, though they are scarce and not altogether certain. The parties were married as long ago as 1916, when she was 19 years old and he was 28, and they lived together for about 10 years from that time. When I say they lived together, they did not have I think a matrimonial home; they lived either at her mother's house or here and there. He was a blacksmith by trade and, in order to find occupation, he had to go to various place, such as Bristol and Cardiff and eventually to Swindon, and when he was in Cardiff I think he took up with another woman. His wife did not I think at the time know about this, but she had a daughter after the end of the 10 years, in October, 1926, and he did not come home for six months after that. When he did come home, he appears to have confessed that he had taken up with somebody else, and the marriage at that point broke up and after 1927 he never sent her any maintenance at all. He turned up occasionally, notably in 1946 after the war, in which I suppose he had been engaged in some capacity or other, although he any not have done so, because by that time he was working in the railway yards at Swindon. Anyhow, the lady with whom he was cohabiting died in 1950, and he asked his wife to come back at that point or some time just about then and she declined for the very good reason that she felt responsible for the support of her mother. She was a tailoress by prefession and supported herself and her daughter and her mother by her efforts. Her mother died in 1951, so she was independent again. Her daughter about thatperiod seems to have gone off to Texas, and there her mother visited her in 1951, with the knowledge evidently of her husband who contributed £100 towards the fare, and in the United States she spent two years working as a housekeeper and then felt homesick and came back. She stayed in England until 1955, when she went to Chile to join her daughter, who by then had married and had settled there, and there she has lived ever since.
The testator was what one might call a prolific testator. He made a number of wills, and the first one of which we know was in 1957, in which he left her nothing. He also left her nothing in 1958 when he made another will, but at about that time he started, according to her testimony, to write letters to her asking her to return to him. Apparently the person who followed his mistress as his housekeeper had left him and he wanted somebody to look after him. He was getting on in years after all, he was over 60 by then, and there is an odd correspondence of which the applicant has exhibited some letters, not complete at all, and no letters from her. Naturally she did not I suppose keep copies and none of her letters, if there were any, were ever found among his effects. His letters are an odd jumble of whining and self-deprecation, saying that everything was his fault and not painting a rosy picture of his prospects. Indeed, his prospects were not rosy, except that he was the lucky possessor of a house, and that house is practically the sole potential asset of his estate, being worth some £2,500 now owing to the enormous increase in the value of house property. He said: If you come home, you can have that. I do not quite know how, but he said: There is the house anyhow and you must come here and claim it. She apparently very rarely answered his letters and did not answer them to his satisfaction, and he continued to make wills between 1959 and 1964 in which he left moneyto her. He left her his residue in most of them, in one of them he left her £1,000, but in 1964 that series of wills seems to have come to an end and in 1966, when he made his last will, he left her nothing, and he seems to have explained to the solicitor' clerk who drew it that he did so because he felt she had lost interest in him altogether and that she would not answer his letters; he was not sure where she was. That may or may not have been true, but that is the explanation he gave.
He died in 1968 and this application was made very little out of time, which was extended by consent and there is no dispute about that. So here we are.
Should some provision be made for her by his will? That is the first question. The second question of course is how much. Mr. Blackburne has addressed us with great energy and eloquence. He says that this woman, although she has been 42 years away and has never been maintained by this testator, owes that misfortune entirely to his fault and not at all to hers and she ha not forfeited the moral obligation which is upon her husband to support his wife within the limits of his means, and, that being so, the gulf of years is not a...
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