Rosita Hendry v Michael Hendry
| Jurisdiction | England & Wales |
| Judge | Master Shuman |
| Judgment Date | 27 June 2019 |
| Neutral Citation | [2019] EWHC 1976 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2018-000323 |
| Date | 27 June 2019 |
[2019] EWHC 1976 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
PROPERTY, TRUSTS AND PROBATE (ChD)
IN THE ESTATE OF MICHAEL FREDERICK HENDRY DECEASED
AND IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Rolls Building,
Fetter Lane, London. EC4A 1NL
Master Shuman
Case No: PT-2018-000323
Stephen Willmer (instructed by Quality Solicitors Rose & Rose) for the Claimant
Katherine McQuail (instructed by W Davies Solicitors) for the First and Second Defendants
Hearing dates: 20 November 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claimant brings a claim for an order under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the act”) for reasonable financial provision from the estate of Michael Frederick Hendry (“the deceased”). She was married to the deceased albeit they separated in June 2016. No provision was made for the claimant under the deceased's will dated 6 August 2016 (“the will”). The claim is brought by a Part 8 claim form issued on 27 April 2018, originally brought against the first and second defendants only, two of the deceased's children. Probate was granted to the third defendant on 29 August 2017. The claim is therefore out of time and the claimant seeks permission under section 4 of the act to bring this claim.
The claim is supported by 2 witness statements of the claimant dated 24 April 2018 and 23 August 2018. The first and second defendants oppose the grant of permission. They rely on the second defendant's witness statement dated 20 September 2018. In addition I adjourned the application to enable the claimant to file a short witness statement dealing with how promptly the application was made. Her solicitor filed a witness statement dated 23 November 2019 principally dealing with events after he realised that the time limit had been missed. The parties then made further written submissions. They were filed promptly but for some inexplicable reason they were not provided to me until much later.
The claimant should have joined the third defendant as a defendant to the claim from the outset. Her solicitors failed to do so. The third defendant was subsequently added as a defendant and has adopted a neutral position in respect of the claim.
Following the hearing of the claim there have been two very different decisions on the question of permission under section 4 of the act. In Cowan v Foreman [2019] EWHC 349 (Fam) Mostyn J refused permission to bring a claim 17 months out of time. That case sought to draw an analogy with the court's approach to breaches of the Civil Procedural Rules 1998 and relief from sanctions. Although section 4 is a substantive not procedural rule. The judge considered that the proper approach to section 4 was to follow the principles set out in Berger v Berger [2013] EWCA Civ 1305. Permission has been granted to appeal the decision. In Bhusate v Patel [2019] EWHC 470 (Ch) Chief Master Marsh granted permission to bring a claim almost 26 years out of time. He considered that the correct approach was to follow the guidelines set out in Re Salmon (Deceased) [1981] Ch 167 and Berger v Berger. The Chief Master was critical of drawing in the overriding objective or the relief from sanctions principles to a substantive statutory provision.
The parties have not invited me to delay my judgment pending the decision of the appeal in Cowan and it seems to me that I should proceed to give judgment on the application for permission. The relevant legal principles were not in issue between me, simply the application of the facts to those principles.
Save for the deceased and the third defendant I shall refer to the relevant people by their first names, no discourtesy is intended. Quality Solicitors Rose & Rose (“R&R”) act for Rosita. W D Davies solicitors (“WDS”) act for Michael and Dorothy.
THE FACTUAL BACKGROUND
The deceased was born on 29 July 1946 and has 3 children: Michael (the first defendant) aged 21 years, Dorothy (the second defendant) aged 30 years and Melanie who is in her 50's and lives in the United States with her family. Melanie has not been joined to the claim but Dorothy states that she is aware of the contents of the deceased's will and respects his testamentary wishes.
Rosita (the claimant) was born on 18 September 1966. She met the deceased in the Philippines on 17 February 2001. She moved from the Philippines to the United Kingdom on 23 June 2003. The deceased and Rosita married on 31 October 2003: the deceased was aged 57 years and Rosita aged 37 years. They had entered into a pre-nuptial agreement on 8 October 2003 (“the agreement”). In summary the agreement provided that in the event of the marriage failing Rosita would receive a lump sum of £10,000 and a one-way flight to the Philippines.
Rosita and the deceased lived together at the deceased's property at 39 Hampton Court Parade, Molesey, Surrey KT8 9HE (the property). Michael lived there too.
The deceased and Rosita separated on 24 June 2016.
There is a dispute about the circumstances surrounding the breakdown of the marriage. Rosita alleges that the deceased's behaviour was increasingly erratic and that he was drinking heavily. She says that the deceased assaulted her and invaded her privacy. On 24 November 2016 South East Surrey Magistrates Court sentenced the deceased to a 12 month community order, fined him £300 together with a surcharge of £85. In addition a restraining order was made against the deceased for 12 months prohibiting him from contacting Rosita or going to 5 Walker Close, Hampton or anywhere else she was residing. She describes being supported by Paul English (Paul) following the breakdown of the marriage and she moved in with him, his mother and sister.
Dorothy disputes Rosita's version of events and takes issue with her failing to set out a fuller and more accurate picture of events. She says that Paul was one of the deceased's closest friends. Rosita had an affair with Paul which led to the breakdown of the marriage. Dorothy blames this for triggering the deceased drinking heavily. She alleges that it was Paul who goaded the deceased about Rosita which led to an altercation which became violent. Rosita alleged that the deceased assaulted her and a charge was brought against the deceased. Dorothy says that this allegation was ‘dropped’ by the Crown Prosecution Service. The sentence was in respect of the deceased posting explicit images of Rosita on Facebook on two occasions, which he admitted. Rosita has indeed been circumspect in setting out an entire picture of the background. I also note that no mention was made of the agreement in Rosita's first statement.
The disputes of fact are not something that I can determine in this hearing.
On 6 August 2016 the deceased executed the will appointing the third defendant as the executor and dividing his residuary estate equally between Dorothy and Michael.
On 7 November 2016 Rosita petitioned for divorce and she says also sought a financial provision order. On 14 February 2017 the deceased died. Rosita says that there was a First Appointment listed in the financial provision proceedings but the died before that hearing. She has exhibited her unsigned Form E Statement of Financial Information.
Paul died on 26 June 2017. Rosita remains living with Paul's mother.
Probate was granted to the third defendant on 29 August 2017. For the purposes of bringing a claim under the act Rosita cannot bring a claim after the end of 6 months from the date on which representation was first taken out. This is said to be 28 February 2018 by Ms McQuail and 1 March 2018 by Rosita. Nothing turns on 1 day. I consider that the correct date is 1 March 2018, as I do not include the event, the date of representation, in the computation of the time. The claim under the Act was issued on 27 April 2018.
THE LAW
The parties agree that the principles that I should apply are those set out in Berger v Berger [2013] EWCA Civ 1305, paragraph 44. Those are themselves a refinement of the guidance from Re Salmon [1981] Ch 167 and Re Dennis [1981] 2 All ER 140, summarised by the trial judge and approved by the Court of Appeal.
In Re Salmon [1981] Ch 167 a widow applied for permission to bring a claim against her estranged husband's estate, some 6 months out of time. The husband and wife had been married for 12 years but separated in 1944 and never saw each other again. The wife met Mr Coard in 1953 and lived with him as man and wife until his death in 1975. The husband died in 1961 leaving a will making no financial provision for his wife. By the time the application was brought the proving executor had distributed most of the estate, albeit there was no evidence that the beneficiaries had disposed of the assets. It was accepted on behalf of the widow that the solicitor had forgotten about the time limit.
Sir Robert Megarry VC identified 6 non-exhaustive guidelines at pages 175–177, which are then summarised in Berger v Berger. In particular the first to third guidelines in Re Salmon are,
“First, the discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is thus plainly one that is to be exercised judicially, and in accordance with what is just and proper. Second, I think that the onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its...
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