By Lesley King, College of Law, London


Inheritance round-up



Dingmar v Dingmar (2006) EWCA Civ 942, (2006) 2 FCR 595.



This is an interesting case on the court's powers in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 against the deceased's severable share of a joint tenancy. The court has power to make such an order under section 9 of the Act, but only if the application is made within six months of the date of the grant of representation. There is no power for the court to allow out-of-time applications. Section 9 provides that the deceased's share is available 'at the value thereof immediately before his death'.



The claimant was the second wife of the deceased. Immediately before the deceased's death intestate in 1997, the couple lived with their two young children in a house owned by the deceased and a son from his first marriage as beneficial joint tenants. The defendant became the sole owner of the house by right of survivorship. The deceased had no other assets, so no grant of representation was taken out.



The claimant continued to live in the house with her children. The defendant obtained a possession order against her in 2004, and the claimant sought an order under section 9 that the deceased's severable share of the house be treated as an asset of his net estate.



The question was whether the deceased's share had to be valued at the date of death, or whether it was possible to award a half-share of the current value of the house, or at least a share corresponding to the proportion that half the value at death bore to the whole current value - in effect, 21% of the value of the house as at the date of death.



The Court of Appeal awarded the claimant a half-share in the property (Lord Justice Lloyd dissenting). It held that section 9 requires a judge to take the proportionate share of the property that would have belonged to the deceased if there had been severance of the joint ownership, and to treat that proportion of the property as the share of the property, which he was empowered to treat as part of the estate.



The words 'at the value thereof immediately before his death' did not alter the notion of that property right, so as to convert it from a certain share in a certain property to a fluctuating share in that property, changing its index value as property prices moved up or down. Although a share of property would have a value which could be expressed in monetary terms, that value was not itself a share in property. A 'value' could not be ordered to form part of the net estate. It was a share in property itself, which was to be treated as part of the estate.



The concept of a property interest changing day by day was too bizarre for that to have been the legislature's intention. Reading the Act as a whole, there was enough ambiguity to justifying overriding what might be the literal meaning of section 9, when its result was to produce absurd and capricious consequences. A construction of the Act should be favoured that eliminated the ambiguity and anomaly by allowing common sense and justice to prevail. The object of the Act was to enable reasonable financial provision to be made for the family of a deceased, and that purpose should guide its construction.



Witowska v Kaminski (2006) EWHC 1940; (2006) All ER D 357 (Jul)



In this case, the appellant was a Polish national. Soon after her arrival in the UK, she had begun living with the deceased. The appellant was an illegal over-stayer in the UK for most of the time that she lived with the deceased, and had a house in Poland in which her son and his girlfriend lived. The appellant and the deceased had lived together for five years, apart from short absences when the appellant visited Poland.



The appellant claimed for financial provision out of the deceased's estate and was successful as a person who had been maintained by the deceased immediately before his death. The trial judge made financial provision for her maintenance based on an adequate amount to maintain her in Poland. She appealed, contending that the level of the maintenance award was inadequate to meet her needs if she remained in the UK and had the effect of forcing her to return to Poland, and that the award was discriminatory under article 12 of the EC Treaty (Nice).



Mr Justice Blackburne held that the judge's conclusion was one he had been entitled to reach. He had based it on the appellant's continued ties with Poland, including the fact that she had a house and a son in that country. Article 12 of the EC treaty was irrelevant to his consideration of her application under the Act. Mr Justice Blackburne also stated that the fact that her residence in the UK was unlawful was no bar to the court's jurisdiction under the Act (see Mark v Mark (2005) UKHL 42, (2006) 1 AC 98 applied).



P v G (family provision: relevance of divorce provision) (2006) 1 FLR 431, (2006) Fam Law 178.



The claimant in this case, a widow, made an application for reasonable financial provision. She and the deceased had experienced marital difficulties, but had attempted reconciliation. The executors accepted that the will did not make reasonable financial provision for her and the issue was confined to quantum only.



In determining the amount payable, section 3(2) of the Act requires the court to consider the amount a surviving spouse could have reasonably anticipated receiving in the event of a divorce. The court is not required fully to determine an ancillary relief application, as this would involve considering factors such as sale costs when there was no intention to sell any of the assets and would unnecessarily increase the cost of the litigation. The court could take into account the fact that it was assessing the reasonable needs of one person, not two.



Thus, it could decide to make greater provision under the Act than it would have done in determining an ancillary relief application. On these facts, an equal division of the assets would have been likely in the event of a divorce, which was sufficient guidance for the application of section 3(2).