Watkins, decd., Re. Watkins v Watkins
| Jurisdiction | England & Wales |
| Court | Chancery Division |
| Year | 1953 |
| Date | 1953 |
Husband and Wife - Marriage - Validity - Proof - Desertion by former husband - Former husband not heard of for twenty-five years - No evidence of his death - No inquiries - Subsequent marriage with testator - Presumption of death - Family provision - Wife formerly testator's housekeeper -
An application for provision under the Inheritance (Family Provision) Act, 1938, was made by a woman who had gone through a ceremony of marriage with the testator in 1948. The plaintiff stated in evidence that her first husband had deserted her in 1923 and that she had not seen him since or heard from him or (with the exception of information which she had received that he had died in 1942) heard anything about him, and that his father and sister, with whom she kept in touch until their deaths in 1927 and 1937, seemed to know nothing of him. In the belief, therefore, that her first husband was dead (founded also on a death certificate, which it was afterwards discovered did not relate to her first husband), she married the testator on January 30, 1948.
The testator died on July 26, 1951, leaving net estate of the value of approximately £15,000. By his will he provided for the payment of an annuity of £2 a week to the plaintiff and bequeathed the residue of his estate to his brother and four sisters in equal shares. The plaintiff, who had formerly been the testator's housekeeper, being dissatisfied with the provision made for her under the will, took out a summons in which she asked for reasonable provision to be made for her.
Held, that, although the plaintiff had apparently not made any adequate search to ascertain whether her first husband was alive, as he had not been heard of by his nearest relatives since 1922, at this distance of time, a jury would be entitled to infer or presume that he was dead by 1948; the plaintiff was therefore entitled, by 1948, to assume that she was free to marry and describe herself as a widow; she was therefore a dependant of the testator and entitled to make an application for provision; and £4 a week should be provided for her.
ADJOURNED SUMMONS.
The plaintiff, Mary Ella Watkins, married the testator in 1948. Her former husband, William Edwards (who was believed to have died in 1942) deserted her in 1923 and they never resumed cohabitation. In 1946, in accordance with the request of the testator, she went to reside with him as his housekeeper and on January 30, 1948, they were married.
The plaintiff's first husband was not heard of by her after 1923 (with the exception of information given to her by a cousin of her first husband in 1942 that he had died at Bath on October 30, 1942); and, although she had kept in touch with his father and sister, they appeared to have had no communication with him nor to have heard anything of him. At the date, therefore, of the second marriage the plaintiff had apparently caused no adequate search to be made to ascertain whether or not he was alive. Assuming, therefore, that she was a widow and free to marry the testator, she married him on January 30, 1948.
The testator died on July 26, 1951, having, by his will dated February 7, 1948, directed his trustees to set aside a fund to provide for his widow an annuity of £2 a week free of duty; and he directed that his residuary estate should be divided between his brother and his four sisters in equal shares. His net estate was approximately of the value of £15,436.
The widow, being of opinion that the provision made for her was inadequate, took out a summons in which she asked that such reasonable provision might be ordered to be made out of the net estate of the testator for her maintenance as the court might think fit.
James A. Gibson for the plaintiff.
R. W. Goff Q.C.; K. W. Rubin for defendants.
Cases referred to in argument: In re PeeteF1; Prudential Assurance Co. v. EdmondsF2; Tweney v. TweneyF3; Doe d. France v. AndrewsF4; Nepean v. Doe d. KnightF5; Doe d. Lloyd v. DeakinF6; Doe d. Jesson.F7
HARMAN J. This is an application for provision under the Inheritance (Family Provision) Act, 1938. The plaintiff started the proceedings on the footing that she was the widow of the testator and therefore was a dependant entitled to apply to the court under the Act. The brother and sisters of the deceased, who were the beneficiaries in remainder under the will, and who oppose the application, challenge that statement in limine by contending that the plaintiff is not their brother's widow and therefore she does not qualify for provision under the Act.
A great deal of evidence has been filed on the opposition side. The first statement which the plaintiff made when she, so to speak, opened her case, is contained in a statement exhibited to her first affidavit:
“I am the widow of the above named William Elias Watkins. I was married to the deceased in 1948. At the time of our marriage I was a widow and the deceased was a bachelor. My former husband, who died in 1942, deserted me in or about 1923 and we never resumed cohabitation.”
There is a plain statement, and in an ordinary case that would be quite a sufficient one: but that was challenged at once on behalf of the defendants by David Thomas Watkins, the brother of the deceased, who obtained through the plaintiff's solicitors the death certificate of the man whom the plaintiff had mentioned as being her husband who deserted her in 1923 and died in 1942. When that is produced, it turns out to be the certificate of a death on October 30, 1942, of one Ernest William Edwards, of 21, Kingsmead Terrace, Bath; a Ministry of Works caretaker, aged 67 years, the informant being the son, N. M. Edwards.
In addition to producing that certificate, David Thomas Watkins produced the first marriage certificate, or what he said was, and what I must take to be, the first marriage certificate, of the plaintiff, which shows that she was married on November 21, 1913, she being then 22 years old and a spinster, to one William Edwards, a bachelor, aged 25 years, he being a coal-miner; they both being inhabitants of Pontypool. Of course there are differences between the description of her husband in the marriage certificate and that of the man who died at Bath in October, 1942; and it is now conceded by the plaintiff that she was wrong in supposing that the man who died at Bath in 1942 was her husband, and that she has no grounds on which she can properly rely to show that her husband died at Bath, or indeed anywhere else, in 1942. That being so, it is said on behalf of the defendants that the plaintiff is not qualified as a...
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Leave to Swear Death
...The Bahamas Jamaica - Rule 68.47 CPR 2002 2. In the Estate of Long-Sutton [1912] P.97. 3. In the Goods of Winstone [1898] P.143. 4. [1953] 1 WLR 1323 at p.1330. See also Bradshaw vs Bradshaw [1956] P.274, where the order was not granted for leaves to swear death although the husband had not......