O'Rourke (Deceased), Re ; Cameron v Treasury Solicitor

This appeal arises from an application under the Inheritance (Provision for Family and Dependants) Act 1975, (the 1975 Act) by Miss Cameron, formerly Mrs O'Rourke, (the applicant). The application was heard by His Honour Judge Quentin Edwards QC in the Ilford County Court on the 24th January 1995. The Treasury Solicitor appeals to this Court against the decision of the judge to award the entire net estate of the deceased to the applicant.

The applicant was married to the deceased on the 20th November 1956. Their marriage was dissolved by decree absolute on the 29th October 1971. There were no children of the marriage. The assets of the spouses were modest and, after protracted ancillary relief proceedings, a consent order was made by Mr Registrar Angel on the 7th July 1981. The order required the deceased to pay the applicant the lump sum of £8000 and part of her costs. Upon payment of that sum all other applications were dismissed. It was a clean break order, save that there was no restriction upon the right of either party to apply for an order under the 1975 Act. The effect of the lump sum order, after payment of the applicant's costs, was to give her just over £4000. Neither the applicant nor the deceased remarried.

The deceased died intestate on the 27th December 1990 and without family. His estate devolved, as bona vacantia, upon the Crown. The Treasury Solicitor, on behalf of the Crown, took out Letters of Administration to the estate on the 21st December 1992. The net estate, at the time of hearing before the judge, was £7,677. The applicant claimed that the disposition of the estate of the deceased was not such as to make reasonable financial provision for her and she sought maintenance out of the estate. At the hearing before His Honour Judge Quentin Edwards QC on the 24th January 1995, it was agreed that, if the applicant succeeded in her claim, she should receive the whole estate, since it was so small. The judge found that the applicant suffered from ill-health and was in very straitened circumstances and her present means were insufficient to maintain her with decency and comfort in the station in life in which she found herself. There were no competing claimants to the estate and the devolving of the estate as bona vacantia by operation of the law of intestacy could not be seen to be the will of the deceased. Rather the judge found that the deceased was indifferent to the destination of his assets after his death. After the dissolution of his marriage the deceased had formed no relationship which placed him under any obligation, moral or legal, towards any person. As a consequence of her grave need of assistance the applicant might well have turned to the deceased for help during his lifetime. Despite the decision in re Fullard (infra) the fact of the clean break order, did not, in the judge's view, preclude the applicant in the present case from obtaining an order for maintenance out of the estate. He ordered that the net estate be paid to the applicant.

The Treasury Solicitor appealed. He has been criticised for doing so in view of the size of the estate. That criticism is, in my view, unjustified, since the appeal raises an issue of principle and we are told that there are other similar applications pending in respect of estates devolving upon the Crown.

On the appeal, Mr Cunningham, for the Treasury Solicitor, has argued that the judge, who did not hold that the deceased had any legal or moral obligation or responsibility to make financial provision for the maintenance of the applicant, was wrong in law to find nonetheless that the disposition of the deceased's estate effected by the operation of the intestacy laws failed to make reasonable provision for the applicant. Alternatively, if he did so hold, he was in error in doing so. He relied upon the clean break order to show no continuing obligation by the deceased towards the applicant. In the absence of any continuing obligation or responsibility there was no ground upon which the applicant could demonstrate a moral claim. The judge erred in his view of the significance of the estate devolving to the Crown as bona vacantia. Mr Cunningham argued that the position of the Crown as the ultimate beneficiary of the estate by way of bona vacantia was neutral in relation to the considerations under section 3 and that neutral position of the Crown could not validate or support the applicant's case. Miss Conroy for the applicant conceded that the clean break order made in 1981 brought to an end any obligation owed by the deceased towards the applicant during his lifetime. She argued, however, that after his death the applicant had a moral claim to the estate which was not dependant upon a moral obligation owed to her by the deceased. In the alternative, in a respondent's notice, she argued that there were special circumstances which created a basis for the applicant`s claim. In support of each argument she relied upon 4 factors, the continuing relationship of friendship after the dissolution of the marriage, the financial plight of the applicant, her increasing ill-health and the absence of other beneficiaries save for the Crown.

The relevant legislation is to be found in the 1975 Act, (as amended in 1984). The categories of applicant for financial provision from the estate of the deceased are set out in

section 1 and include by section 1(1)(b) a former wife of the deceased who has not remarried. An applicant may apply to the court for an order under section 2:—

"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."

In the case of a former spouse the reasonable financial provision is limited to maintenance but no issue as to amount arises on the appeal.

In re Coventry decd [1980] Ch. 461 Buckley LJ at page 494 formulated the question:—

"Was it, or was it not, reasonable in the circumstances of the present case that the deceased made no financial provision for the plaintiff?"

In that case the court was looking at the application of an adult son, but the question is equally apposite 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.

In considering the relevant criteria under section 3 to which the court is to have regard for the purpose of considering whether the condition precedent has been met, the arguments have concentrated upon the words of section 3(1)(d) and (g). In subsection (1)(d) the court shall have regard to: —

"any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or ……"

and in subsection (1)(g) the court shall have regard to:—

"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."

The court also is to have regard to the age of the applicant who is a former spouse, the duration of the marriage and the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family. This applicant is about 64 and was married to the deceased for 14 years.

The argument Miss Conroy has sought to put forward that a moral claim does not require the existence of a moral obligation, is based upon her reading of the judgments of the Court of Appeal in re Coventry and re Fullard. In re Coventry (supra) Oliver J held that the adult son was unable to demonstrate that the estate of his deceased father had failed to make reasonable financial provision for him. He said at page 475:—

"It cannot be enough to say "here is a son of the deceased; he is in necessitous circumstances; there is property of the deceased which could be made available to assist him but which is not available if the deceased's dispositions stand; therefore those dispositions do not make reasonable provision for the applicant." There must, it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that in the circumstances it is unreasonable that no or no greater provision was made."

He then cited a passage from Buckley J in re Ducksbury decd [1966] 1 WLR 1226 at page 1233 which held that the deceased in that case was under a moral obligation to make some financial provision for his first wife and therefore had failed to make reasonable provision for her.

The Court of Appeal dismissed the appeal and approved the judgment of Oliver J. In doing so Goff LJ rejected the argument that Oliver J had said that a moral obligation was a prerequisite of an application under section...