Witkowska v Kaminski
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blackburne |
| Judgment Date | 25 July 2006 |
| Neutral Citation | [2006] EWHC 1940 (Ch) |
| Docket Number | Case No: CH/2005/PTA/0903 |
| Court | Chancery Division |
| Date | 25 July 2006 |
[2006] EWHC 1940 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
The Hon Mr Justice Blackburne
Case No: CH/2005/PTA/0903
Philip Noble (instructed by A E P Zaleski) for the Appellant
Josephine Hayes (instructed by Copitch) for the Respondent
Hearing dates: 18 and 19 July 2006
Judgment Approved by the court for handing down
Mr Justice Blackburne :
Introduction
This is an appeal, with a cross-appeal, against the decision dated 26 July 2005 of His Honour Judge Cowell sitting in the Central London County Court in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") concerned with the estate of the late Konrad Kaminski ("the deceased") who died on 6 October 2002 aged 75. The deceased died wholly intestate.
The claimant, Mrs Janina Witkowska, claimed reasonable financial provision out of the estate. She did so both under sections 1(1)(ba) and 1(1A) of the Act, ie as someone who —not being the wife or a former wife of the deceased —"during the whole of the period of two years ending immediately before the date when the deceased died… was living —(a) in the same household as the deceased, and (b) as the …wife of the deceased" ("the s1(1)(ba) claim"), and also under section 1(1)(e) of the Act, ie as someone "…who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased" ("the s1(1)(e) claim").
The claims were resisted by the defendant, Richard Kaminski, who is the deceased's only child. Unlike his parents, who were Polish in origin, the defendant was born in this country, in fact in London in January 1959. He was therefore 43 at the time of his father's death. The deceased having died a widower, the defendant is solely entitled to the deceased's estate by reason of the intestacy.
The defendant obtained a grant of letters of administration of the deceased's estate on 12 June 2003. The claimant issued these proceedings just under six months later on 1 December 2003.
As at 9 August 2004, the deceased's net estate was estimated at just over £193,000. Its principal assets comprised a half share in the deceased's former home at 15 West Lodge Avenue, Acton, London W3 ("? 15") —the other half share having been gifted to the defendant in about 1994, savings and shares worth about £87,500 and the £9,500 remainder of a legacy of £10,000 given to the deceased by his sister-in-law's husband, a Mr Wloch. The £193,000 figure was calculated after payment of debts, inheritance tax, administration expenses and the amount of a costs order arising in these proceedings and directed to be made out of the estate, but otherwise before the costs of this litigation. By the time of the trial, ? 15 had been sold so that the estate consisted entirely or very nearly entirely of cash.
I was told that the costs of the proceedings below, a substantial portion of which, by the terms of the judge's order, will fall to be met out of the estate, have not been assessed but are expected to be of the order of £50,000.
The relevant facts
The relevant facts as found by the judge are as follows.
The claimant had lived and worked in Warsaw. She ceased working in February 1990 and thereupon became a Polish pensioner. At that time she was just short of 50 years old, having been born on 9 August 1940. In 1990 her husband died leaving her and her only son, Jaroslaw, then aged 25; they lived in a flat in block in Warsaw. The claimant had never been to England, but she obtained permission from the appropriate authorities to come to England. She arrived on 10 January 1997. Her passport was stamped "Leave to enter for six months. Employment and recourse to public funds prohibited." She lived first with a family in Fulham. She spent some time and money visiting the sites of London. At a centre for her compatriots, known colloquially as "The Posk", near Hammersmith she met the deceased. By July 1997 she was living at ? 15 and, apart from relatively short absences in Poland, she was to live with him as if husband and wife until, at the earliest, 18 June 2002 when she returned to Poland. Altogether they lived together for about five years.
The deceased had become a widower in 1994 when his wife of many years and the mother of the defendant died. ? 15 was a three-storey house, the first and second floors being tenanted by Polish speakers for most of the time, while he lived on the ground floor. He had given a half share in the house to the defendant in about 1994. The claimant shared the ground floor with the deceased, which included a twin-bedded bedroom. The claimant's son made two short visits with his girlfriend for about a week at the end of December 1997 and for about ten days in July 2001. The claimant's niece, a Miss Pasternak, together with her boyfriend who lived in England, would visit the claimant and the deceased on occasions.
The claimant and the defendant disliked each other, and the deceased knew it. The deceased was given to heavy drinking but the claimant was a good influence on him. Her care of him alleviated, to some extent, that propensity and alleviated to a greater extent the increasing loneliness he felt after his wife's death. The two were in love with one another and, as the judged put it, each provided the other "with that care and comfort which is one of the three purposes for which marriage is ordained" (see paragraph 14). On 6 October 1997, which was within about three months of the start of cohabitation, the deceased sent £3000 to the credit of the claimant's bank account in Poland. The claimant returned to Poland at the latest by 23 February 1998 where she remained for about six weeks until she returned to this country (again on a 6 month visa, issued on the same terms as her initial entry visa) in early April. Her flat in Warsaw was sold on 6 March 1998 and ? 46 was purchased by her on 12 March 1998. A large part of the fitting out costs of ? 46 was paid for by the claimant's son, who with his girlfriend has lived at ? 46 since its purchase.
Apart from the £3000 which the deceased sent to Poland prior to those transactions, he also sent £1000 on 30 June 1998 which was almost two months after she had returned from Poland and, on 3 March 1999, sent a further £2000 to her bank account in Poland.
In 1999 the deceased finally retired in the sense that he never again worked for remuneration. He was then nearly 72 years old.
In about October 1999 the claimant went to Poland for approximately six weeks living at ? 46. She then remained in England until 18 June 2002 when she went back to Poland. In Poland, she went to the wedding of a nephew and thereafter to underwent medical tests. The deceased gave her £2000 when she left for Poland. While she was there he attempted to send her four packets, each containing £250 in cash, although one of those four packets did not arrive. They were sent on 24 July and 1, 6 and 12 August 2002. She did not spend those sums. During her absence in Poland the claimant and the deceased were in regular, almost daily, telephone communication. On 2 July the deceased sent a parcel to the claimant in Poland. On 8 July she wrote him a letter and later sent him four postcards.
On 27 September 2002 the deceased had an accident and was thereafter in hospital. One of the Polish tenants at ? 15 telephoned the claimant about this. At first she was dissuaded by the defendant from coming over to see the deceased but later decided to come. She arrived on 6 October 2002. She was just too late as the deceased died earlier that same day.
With the exception of a few weeks in Poland in the spring of 2003, the claimant has since remained in this country staying variously with her niece, friends and for two years with an elderly lady whom she looked after in return for paying no rent.
The judge's decision
After setting out the facts as I have summarised them, the judge summarised the claimant's financial position. That was that she has a Polish pension worth, in sterling and net of tax, £3,900 a year, savings the sterling equivalent of which by November 2004 amounted to £20,000, and her property in Poland, ? 46, worth at least £25,000 but probably nearer £30,000. He then stated that the claimant's living expenses in London were estimated at £220 per week as at November 2003. That figure did not take into account what it would cost the claimant to find or rent a place of her own in London. The evidence before the judge established that renting a single room in Hillingdon, in west London, would cost £3,600 a year, renting a one bedroom flat in Ealing would cost £7,800 a year, and that the purchase of a long leasehold flat in the west London area to accommodate one person would cost between £110,000 and £185,000.
Then, after summarising the value of the deceased's net estate for the purposes of the Act, namely the figure of £193,000 odd to which I have referred earlier, the judge summarised the respective approaches of the parties to the claims. Those were that the defendant denied that the claimant should receive anything at all whereas the claimant was effectively claiming the entire net estate. He noted that the defendant had not sought to claim that he had any particular need for the estate.
The judge then set out the relevant provisions of the Act and pointed out, correctly, that, under both limbs of her claim, reasonable financial provision meant "…such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for [her] maintenance". He directed himself, again correctly, that the court was required to consider whether the disposition effected by the intestacy was not such as to make reasonable...
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