Smith v Smith and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MANN |
| Judgment Date | 08 July 2011 |
| Neutral Citation | [2011] EWHC 2133 (Ch) |
| Court | Chancery Division |
| Date | 08 July 2011 |
[2011] EWHC 2133 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Mann
MR I MASON (instructed by Messrs Eagle Sols) appeared on behalf of the Claimant
MR J SMART (instructed by Messrs Price Mears & Co) appeared on behalf of the Defendant
Approved Judgment
The application concerns the estates of Mr Thomas Joseph Smith who died in 2009. When he died he was the sole legal owner and apparently sole beneficial owner of the house known as 50 Bushey Hill Road, London SE5 ("the house").
In 1991 he married the claimant, Mrs Olga Smith, who came from Russia. In Russia she had a good education and got a PhD. She met the claimant and was invited over and, I think, in fairly short order they were engaged and married. Thereafter, they lived in the house.
By 2003 the marriage was in difficulties and in that year Mrs Smith went so far as to sign a statutory declaration in which she indicated there was no relationship and she considered herself separated. In that year she went to Russia according to her evidence to look after her invalid and terminally ill mother. There she stayed until relatively recently.
Shortly after the marriage in 1992 Mr Smith made the first of two wills with which this matter is concerned, which apart from making small provisions for nephews and nieces left his property to Mrs Smith. She says that that was an implementation of promises that had been made to her that because she was married to him and looking after him and if she continued to do so, then she would be left the the deceased's property. One of her frequently voiced complaints at the hearing before me was that that was a promise which ought to be fulfilled.
In the period during which she was in Russia looking after her mother she says she came back on occasions to see the deceased and when she did so she stayed in the house, although at the same time she said there was difficulty in gaining access to the house because she did not have keys. At some point during this period she commenced divorce proceedings, but according to her she did not pursue them because the deceased asked her not to do so. Before she went to Russia, there were at least two occasions on which she commenced proceedings against the deceased based on his unreasonable behaviour.
Mr Smith died on 23 July 2009. In 2005, while Mrs Smith was in Russia, he had made another will, which was effectively a will cutting out Mrs Smith and leaving his property amongst the defendants, who are some siblings, nephews and nieces. The details do not matter. What matters is that Mrs Smith no longer takes.
The estate comprises the house, which is worth about £350,000, and assets, which are effectively now cash and worth in the region of £175,000. This is not, therefore, a substantial estate.
There is a stark dispute of fact between the claimant and the defendants in this case as to the extent to which the marriage can be regarded as what Mr Smart, who appears for the defendants, described as a fossil marriage. The case of the defendants is that the marriage was effectively over from 2003, if not before. There was nothing in it after that time. It is therefore understandable and justifiable that Mrs Smith should be cut out of the will.
Mrs Smith did not pretend that all was well with the marriage, but she denied that it had effectively completely come to an end by the time of the death; and in any event she said she is still entitled to some provision from his estate.
In those circumstances Mrs Smith challenges the later will and propounds the earlier will from which she substantially benefits and she adds a claim that if that is not successful in relation to the order, then she makes an application under the Inheritance Act. She challenges the later will on the footing that Mr Smith did not have testamentary capacity at that time.
These proceedings claiming the relief that I have outlined were commenced by a claim form issued on 22 January 2010. Various directions were given by Deputy Master Mark and Master Bowles. Then on 14 February 2011 the claimant applied for the interim relief which is the substance of the application before me. What she seeks in essence is two orders—the first that she be allowed to reside in the house, and the second claim for £25,000, which is put as a claim for interim financial relief under section 5 of the Inheritance Act.
The matter came before Norris J on 21 February and he made an order by consent, which provided for a completed evidential timetable and the hearing as an application by order. Somewhat unusually, the order also provided for cross-examination of the claimant (and only the claimant) on her evidence. A month later on 21 March 2011 the defendants added a cross application for the appointment of an administrator ad litem. That is a matter with which I have to deal.
Thus the matter arrived before me and I am asked to decide whether or not the claimant should have a right to occupy the house pending the determination of the disputes encapsulated in the proceedings and whether she should have £25,000 by way of interim relief under the 1975 Act.
Her evidence in case in support of her application was in outline as follows. So far as the probate action is concerned, she claims that the 2005 will was granted at a time when the deceased lacked testamentary capacity. She has virtually no evidence of this, other than what she describes as behaviour from which one can only assume or infer Mr Smith lacked capacity, coupled with an assertion that the fact that he broke the promise to leave property to her also demonstrated that he must have lacked testamentary capacity. I do not think I do her case any injustice in describing it in that brief way.
The behaviour that she relies on is indeed strange behaviour if it occurred. She describes a pattern of irrational behaviour which she claimed to have observed on the part of Mr Smith, including breaking into her room, assaulting her, seeking to wear her underwear and appearing in the doorway with a robe open and nothing underneath. She also describes other further irrational behaviour. She was not, however, in this country when the will was made. The only behaviour evidence that she has is evidence of the kind that I have described. However, she supplemented it by relying on what transpired when the deceased's body underwent a post mortem. On that occasion it was discovered that he was suffering from a brain tumor, a glioblastoma as I understand it, and her case is that such a tumor is capable of giving rise to irrational behaviour which would be consistent with, if it does not demonstrate, lack of testamentary capacity. She also relies on a diabetic condition that he had. Her evidence is therefore all secondary and circumstantial. That is her case on want of capacity.
For the sake of completeness, I will merely say at this stage that the defendants meet that evidence by positive evidence of various of the claimants who knew the deceased at the time and saw no evidence of irrationality: a doctor who saw the deceased and who, as it happens, is something of an expert in capacity, who says that there was no evidence of incapacity that he could see; the solicitor who took instructions for the will who says that the will was rational and he saw no evidence of incapacity; and an expert who has looked at all the evidence to which I have referred and said he cannot see any evidence of incapacity and, furthermore, it does not follow that the brain tumor would cause it. That is the basis of the probate claim and its ambit.
So far as the claim under the Inheritance Act is concerned, Mrs Smith relies on the fact that she was the widow of the deceased when he died and that she there has locus standi to apply. That being the case to make no provision for her is unreasonable provision, not least because proper provision was promised, and in any event she claims to have looked after the deceased during his life and tended him when he was ill. I think she would add that that was more than he did for her when she was ill, on certain of the evidence that she gives. She therefore makes her claim under the Act.
That claim will be tried along with the probate claim in January of next year, but within that claim she makes her application for interim relief under section 5 of the 1975 Act. Section 5 reads as follows:
"5. Interim orders
1. Where on an application for an order under section 2 of this Act it appears to the court:
(a) that the applicant is in immediate need of financial assistance but it is not yet possible to determine what order (if any) shall be made under that section; and
(b) that property forming part of the net estate of the deceased need or can be made available to meet the need of the applicant, the court may order that subject to any such conditions or restrictions if any that the court may impose and to any further order of the court there shall be paid to the applicant out of the net estate of the deceased such sum or sums and (if more than one) at such intervals that the court thinks reasonable;…"
It is under that provision that Mrs Smith claims the sum of £25,000, of which she claims to have an immediate financial need. I will come on to the nature of her case in more detail in due course.
There was a limited debate before me as to the jurisdiction if any to order occupation of the house. For reasons which will appear, I do not think it...
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