Re Krubert (Deceased)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,MR. JUSTICE CAZALET |
| Judgment Date | 27 June 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0627-3 |
| Docket Number | CCFMF 95/1574/F |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 1996 |
[1996] EWCA Civ J0627-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAERNARFON COUNTY COURT
(Mr. Recorder Curran)
Royal Courts of Justice
Strand
London WC2
Lord Justice Nourse
and
Mr. Justice Cazalet
CCFMF 95/1574/F
MR. G.D. JONES (Messrs. Richard Wilson & Co., Pangbourne, Berks.) appeared on behalf of the Appellant Second and Third Respondents.
MR. A. O'TOOLE (instructed by Messrs. Elwyn Jones & Co., Bangor) appeared on behalf of the Respondent Applicant.
Thursday, 27th June 1996
This is an appeal against an order made by Mr. Recorder J.T. Curran in the Caernarfon County Court on 6th October 1995 on an application under the Inheritance (Provision for Family and Dependants) Act 1975.
The deceased was Frank Krubert, a Czech emigrant to the Ukraine, who was born in 1911, escaped from Siberia during the Second World War and, having fought with the British Army in North Africa, came here at the end of the War and lived for the rest of his life in or near Bangor in Gwynedd. On 29th May 1950 he was married to the applicant in these proceedings, Elsie Krubert, who was born on 3rd December 1906 and is now 89 years of age. They had no children. In 1952 the deceased acquired in his sole name a plot of land on which he built, amongst others, the house in which he and Mrs. Krubert thereafter lived together, Anna Villa, Ainion Road, Bangor. The plot was acquired at a price of £200, which was provided wholly by Mrs. Krubert. The deceased died domiciled in England and Wales on 20th April 1994 at the age of 82 or 83.
By his last will dated 6th December 1993 the deceased, by clause 1, appointed Mrs. Krubert and his solicitor, Mr. Davis, to be the executors and trustees thereof; by clause 2, bequeathed to Mrs. Krubert all his furniture and household and domestic effects at Anna Villa absolutely; by clause 3, bequeathed to his nephew, Milanek Krubert, his stamp collection and his war medals and decorations; and by clause 4, bequeathed to Mrs. Krubert a legacy of £10,000. By clause 5, he devised Anna Villa to his trustees upon trust to permit Mrs. Krubert to live there so long as she wanted to, she paying the rates, taxes and the cost of keeping it in good repair. Subject to Mrs. Krubert's interests, the trustees were directed to hold the net proceeds of the sale of the house and the net income until sale as part of the deceased's residuary estate.
By clauses 6 and 7, the deceased devised and bequeathed his residuary real and personal estate to his trustees upon the usual trusts for sale and conversion, for payment of debts, funeral and testamentary expenses and legacies and, subject thereto, to pay the income thereof to Mrs. Krubert during her life. By Clause 8, and subject to Mrs. Krubert's life interest, the trustees were directed to hold the residuary estate in trust for the deceased's brother, Vladislav Krubert, and his sister, Anna Vaskova, in equal shares. They both live in Czechoslovakia and are aged 82 and 78 or 79 respectively. The will was proved by Mr. Davis alone on 3rd October 1994. Shortly stated, the effect of the will was that Mrs. Krubert took the great bulk of the personal chattels and a legacy of £10,000 absolutely together with a life interest in the house and the rest of the estate, with remainder to the deceased's brother and sister.
When the matter came before the learned recorder the net estate, after deduction of actual and prospective liabilities, was estimated to be worth just over £100,000. Today we have been supplied with fresh figures, some of them estimated, which show the following. The assets of the estate, apart from chattels, consist of Anna Villa worth £59,000; marketable securities worth just over £20,000; national savings certificates worth £25,000 and cash amounting to £7,650, making a total of £111,676. The liabilities, actual and prospective, reduce that figure to £77,811, of which £59,000 is represented by Anna Villa and the remaining £18,811 by the cash and other liquid assets after paying the actual and prospective liabilities.
Amongst those liabilities I must mention, first, that a sum of £7,000 has been set aside as a contingency fund in respect of a claim which has not yet been made but may be made against the estate. Mr. Davis proposes that, if no claim is made before the estate is otherwise fully administered, he will transfer that sum to whomsoever may be entitled to it under whatever order of the court is ultimately made, so that any liability therefor will thereafter attach to that person or persons. Secondly, I must mention the regrettable fact that the costs already incurred of the proceedings below, all of which were directed to be paid out of the estate, together with the costs of the appeal to this court if a like order were to be made here, will amount in the aggregate to about £23,000, a very sizable proportion of this small estate.
After the deceased's death Mrs. Krubert was advised that reasonable financial provision had not been made for her by the deceased's will. So on 17th October 1994 she issued an originating application in the County Court asking for an order to that effect to be made under section 1 of the 1975 Act. The respondents to the application were Mr. Davis, Mr. Vladislav Krubert and Mrs. Vaskova. Mrs. Krubert swore an affidavit in support of her application. Also before the recorder were her witness statement and those of her sister, Doris Morris, Mr. Davis, Mr. Vladislav Krubert and Mrs. Vaskova. Mrs. Krubert and Mrs Morris both gave oral evidence.
The recorder's order made on 6th October 1995 provided that Anna Villa should be transferred to Mrs. Krubert absolutely and that the deceased's will should have effect as from his death as if, in place of the provisions of clauses 4, 5, 7 and 8, he had bequeathed legacies of £7,000 each to Mr. Vladislav Krubert and Mrs. Vaskova and the residue to Mrs. Krubert absolutely. As I have said, he directed the costs of all parties to be paid out of the estate in due course of administration. Thus the effect of the order was that, apart from the specific bequest of the deceased's stamp collection and war medals and the substituted legacies of £7,000 each for Mr. Vladislav Krubert and Mrs. Vaskova, the whole estate, including Anna Villa, would go to Mrs. Krubert absolutely. Against that order Mr. Vladislav Krubert and Mrs. Vaskova now appeal.
It is well established that the effect of sections 1, 2 and the other material provisions of the 1975 Act is that on every application under it the court must ask itself two questions: first, has reasonable financial provision been made for the applicant; second, if not, what financial provision ought he or she to receive? But in answering those questions a distinction is to be made between the wife or husband of the deceased and any other applicant. In the latter case the provision referred to is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance. In the former it is such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive whether or not it is required for his or her maintenance. Thus, as appears from the judgment of Oliver LJ in Re Besterman, decd. [1984] Ch. 458, at pp.465–466, in the former case maintenance is not the only, or even the dominant, consideration to be taken into account by the court.
In the present case the recorder delivered a full and careful judgment in which he took all the material considerations into account. They need not be repeated. He answered the first question in the negative and the appellants have not sought to suggest that he was wrong in that. In other words, they now accept that the will did not make reasonable provision for Mrs. Krubert. So the question on the appeal is whether the recorder's decision as to the provision she should receive was wrong in principle or, viewed as an exercise of discretion, plainly wrong.
In answering both questions, the recorder directed himself by reference to the observations of this court (Mustill LJ and Waite J) in Moody v. Stevenson [1992] Ch. 486, where consideration was given to the second part of section 3(2) of the Act:
"… and, in the case of an application by the wife or husband of the...
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