Victoria Frances Goenka v Gopal Goenka (as Executor of the Will of Nirupam Goenka, Deceased, and on his own behalf) and Others
| Jurisdiction | England & Wales |
| Judge | Judge Hodge QC |
| Judgment Date | 06 August 2014 |
| Neutral Citation | [2014] EWHC 2966 (Ch) |
| Docket Number | Case No: 3LV30254 |
| Court | Chancery Division |
| Date | 06 August 2014 |
[2014] EWHC 2966 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LIVERPOOL DISTRICT REGISTRY
Liverpool Civil & Family Courts
35 Vernon Street
Liverpool
His Honour Judge Hodge QC
sitting as a Judge of the High Court
Case No: 3LV30254
For the Claimant: Mr Andrew Clark (instructed by Canter Levin & Berg)
For the 1 st and 2 nd Defendants: Mr Nicholas Jackson (instructed by Victor B Welsh)
For the 3 rd to 5 th Defendants: Mr Joseph Goldsmith (instructed by Pannone)
th August 2014
VICTORIA FRANCES GOENKA V GOPAL GOENKA & 4 OTHERS
Yesterday, from about 10.30 in the morning until about 4.40 in the afternoon, I heard the trial of a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This is my extemporary judgment.
The claim raises an interesting, and apparently novel, point as to the true scope of section 8(1) of the 1975 Act: Is a nomination of a person to receive the lump sum payable where a Health Service employee dies in pensionable employment made in accordance with the National Health Service Pension Scheme Regulations 1995 (which were themselves made under powers conferred by the Superannuation Act 1972) a nomination made "in accordance with the provisions of an enactment"? Although strictly concerned with a nomination made under the statutory pension scheme applicable to Health Service employees, the issue is of potentially wider application to statutory pension schemes generally. The case also raises issues as to the correct approach to apply to a claim by a spouse under the 1975 Act.
I begin by setting out the relevant chronology of events. The claim concerns the estate of the late Dr Nirupam Goenka. He was married to the Claimant, Victoria Frances Goenka, on the 31 st August 1997. There were three children born to that marriage, all sons. They are Master Odel Goenka, who is now 16 years of age; Master Kiran Goenka, who is now 14 years of age and will shortly attain his fifteenth birthday; and Master Sachin Goenka, who is eleven years of age. They are respectively the Third to Fifth Defendants to this litigation, and they act through the Official Solicitor as their litigation friend.
On the 9 th May 2012 the Claimant presented a divorce petition. There was a first financial provision hearing for directions on the 24 th October 2012. That followed the making of a decree nisi of divorce on the 15 th August 2012. On the 7 th September 2012 the deceased made his last will. On the same day he wrote a Letter of Wishes, which was supplemented by a further, and less formal, letter three days later on the 10 th September 2012. It is clear from the terms of that latter letter that at that time the deceased was contemplating that he would make a further will following the resolution of the financial matters attending his divorce and the making of the decree absolute. However, and sadly, seven days later, on the 17 th September 2012, the deceased committed suicide. He was just 41 years of age. He was a qualified medical practitioner. I am told that he was a consultant endocrinologist.
A Grant of Probate was made out of the Liverpool District Probate Registry to the First and Second Defendants on the 11 th March 2013. The First Defendant, Dr Gopal Goenka, is the father of the deceased and thus the grandfather of the three infant Defendants, numbered three to five. The Second Defendant is Mr Victor Bernard Welsh, who joined with Dr Goenka in taking out the Grant of Probate. Mr Welsh is the solicitor who was responsible for the drafting of the will. He acts as the solicitor for the First and Second Defendants in this litigation. The claim form seeking financial provision under the 1975 Act was issued in the Liverpool District Registry of the Chancery Division on the 9 th September 2013, just within the six-month period after the Grant of Probate.
The brief details of the claim record the death of the deceased on the 17th September and state that the Claimant is his widow. The claim form refers to the appointment of the Defendants as executors of the will and the estate and the Grant of Probate. The claim form then records that the First Defendant had been nominated by the deceased (it says) "pursuant to the provisions of the 2008 NHS Pension Scheme Regulations" but it is now common ground that (because of the date of the deceased's entry into service with the NHS) the applicable regulations were the National Health Service Pension Scheme Regulations 1995 (SI 1995/300). Those regulations were, as I say, made under powers conferred by sections 10 and 12 of, and Schedule 3 to, the Superannuation Act 1972.
The nomination of the First Defendant by the deceased was to receive a lump sum payable under the pension scheme upon the deceased's death, which nomination remained in force at the time of his death. Pursuant to that nomination, the First Defendant received a payment of a death in service benefit of £201,000. It is asserted that by section 8 (1) of the Inheritance (Provision for Family and Dependants) Act 1975 such sum is to be treated, for the purposes of the Act, as part of the deceased's net estate. The Claimant claims, under section 1 (1) (a) of the Act, on the basis that the disposition of the deceased's estate effected by his will is not such as to make reasonable financial provision for her. She seeks an order under section 2 (1) (b) of the Act for the payment to the Claimant out of the estate of a lump sum of £201,000, or such other sum as the court thinks just; and an order under section 2 (4) (a) of the Act that the First Defendant should make payment of such sum to the Claimant out of the death in service benefit. There is an alternative claim for relief which, in the event, does not arise. Alternatively, the Claimant seeks further or other relief under section 2 of the 1975 Act.
It is necessary at this point to relate the relevant provisions of the will. It appointed the First and Second Defendants as the deceased's executors. There was then an appointment of the First Defendant, the deceased's brother (Dr Anupam Goenka) and a friend of the deceased (Dr Arpana Verma) as trustees of the will. There was provision for the appointment of alternative or additional trustees. By Clause 5 of the will, the personal chattels were given to the Claimant absolutely. By Clause 6.1 the Claimant was given all the deceased's right, title and interest in 1 Keswick Villas, Huyton, Liverpool L16 2NR. That property was subject to a mortgage; and by Clause 6.2 the deceased gave to his executors and trustees his share in the proceeds of a Clerical Medical Flexible Mortgage Plan on trust to apply the same in redemption of the mortgage against 1 Keswick Villas. In fact, the Mortgage Plan did not form part of the estate. Its terms provided for the proceeds of the Clerical Mortgage policy to be paid to the survivor of the deceased and the Claimant on the death of whichever was the first to die — in the event the deceased; but the intention of the will is clear, even though the machinery by which effect has been given to it is not exactly as the deceased intended. The intention is that the Claimant should have the former matrimonial home free from mortgage, and that intention has been achieved.
Clause 6.3 gave the executors and trustees the proceeds of the deceased's Barclays Bank current account to be applied in discharge of the deceased's debts, funeral and testamentary expenses and any Inheritance Tax liability, and any balance was to be paid over to the Claimant. In the event, that money was exhausted and nothing fell to be received by the Claimant from that identified Barclays Bank current account.
There were two pecuniary legacies, each of £1,000, given to Families Needs Fathers, a registered charity, and to Fathers 4 Justice Limited. Clause 7 dealt with the residuary estate after payment of the debts, funeral and testamentary expenses. The residuary estate was to be held on the trusts set out in Clauses 8 through to 11 of the will. Essentially, during the Trust Period of 125 years beginning with the date of the deceased's death, and subject to an overriding Power of Appointment, the trustees were to accumulate the whole or part of the income of the Trust Fund and add it to the Trust Fund; but they were given the power to pay or apply income to or for the benefit of any beneficiaries as the trustees thought fit. The Beneficiaries were defined in Clause 8.1 as meaning the deceased's descendants, the Claimant, and at any time during which no descendant of the deceased was living, his father, the First Defendant, and his mother, Hem Goenka.
Clause 10.1 gave the trustees an overriding Power of Appointment for the benefit of any beneficiaries on such terms as the trustees might think fit. There was a default provision in Clause 11 whereby "if the above provisions for the distribution of the Trust Fund fail" then it should be held on trust for the deceased's brother, Dr. Anupam Goenka, absolutely and if he should fail to obtain a vested interest there was a substitutionary provision in favour of his issue. The will incorporated the Standard, and all of the special, Provisions of the 2 nd edition of the Society of Trust and Estate Practitioners.
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