COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAERNARFON COUNTY COURT
(Mr. Recorder Curran)
B e f o r e :
MR. JUSTICE CAZALET
| R E K R U B E R T D E C E A S E D
|(1) MICHAEL HUGH RUTHERFORD DAVIS
(2) VLADISLAV KRUBERT
(3) ANNA VASKOVA
Smith Bernal Reporting Limited
180 Fleet Street London EC4A 2HD
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(Official Shorthand Writers to the Court)
MR. A. O'TOOLE (instructed by Messrs. Elwyn Jones & Co., Bangor) appeared on behalf of the Respondent Applicant.
Crown Copyright ©
LORD JUSTICE NOURSE:
"... and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce."
The recorder referred to the following passages in the judgment of the court delivered by Waite J. At p.498F:
"The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased's lifetime by virtue of his or her prospective entitlement under the matrimonial law."
At page 499D:
"In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?' If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?'"
At page 503B:
"The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce."
"In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ and Waite J which appears to give great prominence to the requirements of s 3(2) in a case of this kind. On the other side, Mr. Harrap referred us to a further passage in the judgment of Oliver LJ in Re Besterman deceased at p 469, which suggests that no greater prominence is required to be given to that consideration than to any of the others to which the court must have regard. It seems that Re Besterman deceased was not referred to in Moody v. Stevenson. In my view it is unnecessary for us to enter upon any possible conflict between those two decisions and I do not propose to do so."
"In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable' is nowhere mentioned, although the parties' financial needs - which have been construed to mean `reasonable requirements' - constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard' and the overriding consideration is what is `reasonable' in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court's attention."
Reference should also be made to Re Bunning, deceased  Ch. 480, at pp.498-499, per Vinelott J.
"In this particular case, in very round figures there might have been an equal division of capital, something in the order of about £55,000 each, bearing in mind the common pool and the sale of the house, to each of the two parties to the marriage. But, as I understand it, the matrimonial position is a starting point and in deciding what is reasonable financial provision the court has to have regard not just to that but also to the other matters which are listed in section 3 of the Act."
"The Act of Parliament makes plain that the court's powers only arise if the court is satisfied that the disposition of the deceased's estate by his will fails to make reasonable financial provision for the plaintiff. It seems to me that the plaintiff has manifestly failed to cross the threshold. It is not for this court to rewrite the testamentary provisions of deceased persons lightly. If in this case it can be said that the provision of a life interest in the entire residuary estate is not reasonable provision then I think that could be asserted in almost any case in which the testator elects to make provision for his surviving spouse by that means."
MR. JUSTICE CAZALET:
Order: appeal allowed with the second and third respondents' costs to be taxed on the standard basis and paid out of the estate in due course of administration; recorder's order varied to the extent indicated.