England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
(HHJ WEEKS QC)

		Royal Courts of Justice Strand London, WC2
		21 January 2004

1. LORD JUSTICE WARD: On 29 September 2003, HHJ Weeks QC, sitting as a judge of the Chancery Division in the Bristol District Registry, determined the preliminary issue which the district judge had ordered to be tried in a claim brought by Mrs Anita Gully against the brother of the late Mr Anthony Dix for reasonable provision from his estate under the Inheritance (Provision for Family and Dependants) Act 1975 (as amended). The judge declared that:

"The claimant is someone who, during the whole of the period of two years immediately before the date when the deceased died, was living in the same household as the deceased and as the wife of the deceased, and immediately before the death of the deceased had been maintained wholly or partly by the deceased."

Because the question had raised a point of interpretation of the Act, the judge gave permission for this appeal.

2. The facts do not appear to be much in dispute. The inferences from them may be. Mrs Gully separated from her husband and went to live with the deceased in 1974. They never married. Both worked, she until her retirement, he until 1999 when, possibility under the influence of drink, he fell over the banisters and sustained serious head injuries. Thereafter he was unable to look after himself and was incontinent when drunk, which was often. He had long been addicted to drink which had led to some five or six separations between the parties, usually overnight, but on one occasion for about a week. The deceased always telephoned, apologised and promised to stop drinking. Mrs Gully always returned to him after those calls. His behaviour was erratic. On one occasion he tried to commit suicide by setting fire to the garage and had to be pulled from a burning motor car by his neighbour. Mrs Gully looked after him in conditions which became increasingly squalid, as his incontinence made it impossible to share his bed or even sit on his urine soaked sofa.
3. Her difficulties were compounded by her being diagnosed in 1991 as suffering from Huntingdon's Chorea, a relentlessly progressive disease which produces movement abnormalities and eventually dementia.
4. Matters came to a head on 7 August 2001. The deceased woke her in the night, brandishing a knife and threatening to kill himself in front of her. She was frightened and felt she could no longer cope. She telephoned her daughter who went to her mother's house and insisted that her mother leave at once with her. She took no more than a small supply of clothing. The medical evidence records that:

" ... She was feeling extremely stressed because of her domestic situation. Her partner at the time was drinking heavily and was aggressive towards her. This was causing her a lot of anxiety and in fact caused her to lose such a lot of weight she was investigated fully for an underlying medical cause of weight loss. None was found and the conclusion of the specialist was that her symptoms were due to the stress of her domestic situation. On 7 August it was discussed with her that it may be a good idea for her to leave temporarily because of the detrimental effect on her health."

5. The deceased was, as usual, mortified by her departure. He telephoned Mrs Gully's daughter on several occasions to ask Mrs Gully to come back and to say, untruthfully, he had stopped drinking. Mrs Gully's daughter said that her mother would not come back until the deceased provided a new bed for her mother because she (the daughter) had seen the existing one and it had been saturated with urine. Eventually he promised to get a new bed. Mrs Gully's daughter never passed on the messages from the deceased to her mother, fearing that her mother would instantly go back to live with him again.
6. She never did go back because he was found dead in his garden on 17 October 2001, some three months after Mrs Gully had left him, hence the preliminary issue that the judge had to decide.
7. The Inheritance (Provision for Family and Dependents Act) 1975 provides as follows:

"(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons --

...

(ba) any person (not being a person included in paragraph (a) or (b) above) to whom sub section (1A) below applies ...

(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or in part, by the deceased;

that person may apply to the court for an order under section (2) of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

(1A) This subsection applies to a person if the deceased died on or after 1 January 1996 and, during the whole of the period of two years immediately before the date when the deceased died, the person was living --

(a) in the same household as the deceased, and

(b) as the husband or wife of the deceased ...

(3) For the purposes of subsection (1)(e) above, a person shall be treated as being maintained by the deceased, either wholly or partly, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person."

Subsections (1)(ba) and (1A) were inserted by the Law Reform (Succession) Act 1995.

8. The deceased left an estate worth about £170,000, including the house in Bristol in which he and Mrs Gully had lived. His brother, the appellant, who had seen the deceased but twice in the past 30 years, was granted letters of administration and is the defendant to Mrs Gully's claim. At a late stage a will was discovered which may make some valid request to the deceased's mother-in-law, and the defendant will succeed to the residue by virtue of the partial intestacy.
9. It was beyond challenge that, at least until 7 August 2001, Mrs Gully and the deceased had lived together in the same household and as husband and wife. The judge held that because the deceased was providing a roof over Mrs Gully's head, certainly up to the point when she left the house in August 2001, he was making a substantial contribution in money or money's worth towards her reasonable needs and that he did so otherwise than for full valuable consideration, thereby satisfying the requirements of section 1(3) of the Act. The real issue in the case was whether Mrs Gully's leaving the deceased and living apart from him for the last 3 months of his life had the consequence that she could not show their living in the same household during the whole of the period of two years immediately before the date on which the deceased died for the purposes of section (1A), nor that she was, immediately before the death of the deceased, being maintained by him within subsection (1)(e).
10. The latter question arose before the Vice-Chancellor Sir Robert Megarry in In Re Beaumont, Deceased [1980] 1 Ch. 444, where he identified the issue as follows at page 451.

"I turn to the phrase 'immediately before the death of the deceased was being maintained', in section 1(1)(e), and particularly the word 'immediately'. Does this require consideration to be given only to the state of affairs existing at the instant before the death of the deceased, or does it allow a wider approach? In particular, what if the state of affairs at that instance differs from the normal state of affairs?"

11. He gave various examples, such as illness, and held at page 452:

"The contemplation of possible examples such as these suggests certain consequences. First, it seems to me improbable that the word 'immediately' in section 1(1)(e) was intended to confine the gaze of the court to whatever was the state of maintenance existing at that precise moment. I very much doubt whether Parliament can have intended people to shuffle in and out of section 1(1)(e) and (3) with every variation in the state of maintenance between them, so that last week C was partly maintaining D with substantial contributions, this week neither is maintaining the other, and the next week D will be maintaining C with substantial contributions. Given that the moment at which the examination must be made is therefore the moment before the death of the deceased, what has to be examined ought not, I think, to be the de facto state or balance of maintenance at that moment, but something more substantial and enduring.

The question is what that something is. If at the moment before the death of the deceased there is some settled basis or arrangement between the parties as regards maintenance, then I think that section 1 should be applied to this, rather than to any de facto variation in the actual maintenance that may happen to exist at that moment. If the general arrangements between the parties is that D is substantially maintaining C, then matters ought to be decided on that basis. This should be so even if at the moment before D dies, C is in fact making such contributions, whether in personal services such as nursing or in the provision of money or goods, that on balance C is substantially maintaining D. The word 'immediately' plainly confines the court to the basis of the arrangement subsisting at the moment before death and excludes whatever previously subsisted but has ended and the state of affairs under it."

12. His judgment was approved in this court in Jelly v Illife [1981] Fam 128. Stephenson LJ held at page 136E:

"In considering whether a person is being maintained immediately before the death of the deceased, it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death. It is, I think, not disputed that a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal illness."

13. Later he said:

"Accordingly, I am of opinion that the court has to consider whether the deceased, otherwise than for valuable consideration (and irrespective of the existence of any contract), was in fact making a substantial contribution in money or money's worth towards the reasonable needs of the plaintiff on a settled basis or arrangement which either was still in force immediately before the deceased's death or would have lasted until her death but for the approach of death and the consequent inability of either party to continue to carry out the arrangement."

14. Griffiths LJ held at page 141C:

"The words 'immediately before the death of the deceased' in section (1)(1)(e) cannot be construed literally as applying to the de facto situation at death, but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend, the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them."

15. Judge Weeks recited those authorities and directed himself that he had to look at:

" ... the settled state of affairs during the relationship between these parties and not the immediate de facto situation prevailing before the deceased's death, which was, of course, that he was making then no contribution to Mrs Gully's welfare or needs."

16. Mr Goodall, on the appellant's behalf, submits that the learned judge fell into error and was looking through the wrong end of the telescope. I disagree. I can see no possible criticism of that direction which correctly applied the law in the authorities which bound him and bind us. Accordingly, he looked at "the settled situation" and not at the "abnormal situation in the last three months of Mr Dix's life" when, because of Mr Dix's abuse of alcohol, Mrs Gully found herself unable "to cope with the consequences of living with him and moved out". He held that their having lived together for some 27 years was "the norm of their relationship", and that was the settled situation. Her three-month absence was not the established or settled pattern of life, but was an abnormal situation. He was, therefore, satisfied that Mrs Gully brought herself within section (1)(1)(e) of the Act. In my judgment, he was right to do so.
17. Turning to section 1(ba), he held:

"I think I ought to apply by analogy the reasoning of the Vice-Chancellor and the Court of Appeal to the requirements introduced by the 1995 Act and hold that the reference there to the whole of the period of two years ending immediately before the date when the deceased died, does not require the court to confine its attention solely to that period. The court's duty is to look at that period and, if necessary, the preceding period, to discover what the established relationship between the parties was. If that relationship has come to an end, then of course the applicant will not satisfy the test during the whole of the relevant period. If, however, the relationship was merely suspended during the onset of the death, then the applicant can, in my judgment, satisfy the test by showing what was the norm within a two-year period."

18. It is, I think, common ground, and it is obviously right, that the same test should apply for subsection (1A) as it does for (1)(e) despite the minor difference in the language used.
19. Mr Goodall submits, on the appellant's behalf, that the judge erred in considering not just the position at the date of death, but also at the time when the claimant had been cohabiting with the deceased, and he submits that the proper test is to look at the moment of death to see if at that very moment the claimant was living with the deceased or being maintained by him. This, in my judgment, states the law too narrowly and gives to the words "immediately" a literal construction in a way disavowed by the authorities. In my judgment, I do not find any justified criticism of the approach taken by Judge Weeks. The judge did direct his attention to the moment of death in order to ask whether at that time the arrangements or the state of affairs was settled. In order to do so it was necessary to look at the preceding period in order to see the whole picture. Whether an arrangement is settled or a relationship is enduring at any particular point in time cannot be judged without regard to history. Mr Goodall then submits that even if the relationship were merely suspended, then the test cannot be satisfied because if the relationship is in suspense, it cannot be a settled relationship.
20. Section (1A) requires that during the whole of the two-year period, two elements be present. First, that the claimant was living in the same household as the deceased and, secondly, that she lived in a relationship which can be categorised as living as the wife of the deceased. The concept of parties living together in the same household is a familiar one in other areas of statutory law. Under the old Larceny Act, for example, the prosecution had to prove in a receiving case that the husband and wife were not "living together", and the Court of Criminal Appeal held in Rex. v Creamer [1919] 1 KB 564 that:

"A husband and wife are living together not only when they are residing together in the same house, but also when they are living in different places, even if they are separated by the high seas, provided the consortium has not been determined."

21. In Nugent-Head v Jacob [1948] AC 321, a case under the Income Tax Act 1918, a wife was "living with her husband" who had been absent on military service for more than three years because there had been "no rupture of matrimonial relations", per Viscount Simon at page 324.
22. Perhaps a closer analogy with the present position is that under the Divorce Reform Act 1969, re-enacted in section 1(6) of the Matrimonial Causes Act 1973, as follows:

" ... a husband and wife shall be treated as living apart unless they are living with each other in the same household, and references in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household."

23. That received this court's attention in Santos v Santos [1972] Fam 247. Giving the judgment of the court, Sachs LJ observed first at page 262 and then at page 263:

" ... use is again made of words with a well settled matrimonial meaning -- 'living together', a phrase which is simply the antithesis of living apart, and 'household', a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated ... "

... 'living apart' ... is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife were physically separated. For the purpose of that vast generality, it is sufficient to say that the relevant state of affairs does not exist while both parties recognise the marriage as subsisting. That involves considering attitudes of mind; and naturally the difficulty of judicially determining that attitude in a particular case may on occasions be great."

Although the court was dealing with the converse situation, namely living apart, nevertheless I find that judgment helpful in the construction of the 1975 Act.

24. In my judgment, similar considerations must apply to the meaning to be given to the statute with which we are presently concerned. Thus the claimant may still have been living with the deceased in the same household as the deceased at the moment of his death even if they had been living separately at that moment in time. The relevant word is "household" not "house", and "household" bears the meaning given to it by Sachs LJ. Thus they will be in the same household if they are tied by their relationship. The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgment of their mutual society, and the mutual protection and support that binds them together. In former days one would possibly say one should look at the whole consortium vitae. For present purposes it is sufficient to ask whether either has demonstrated a settled acceptance or recognition that the relationship is in truth at an end. If the circumstances show an irretrievable breakdown of the relationship, then they no longer live in the same household and the Act is not satisfied. If, however, the interruption is transitory, serving as a pause for reflection about the future of a relationship going through difficult times but still recognised to be subsisting, then they will be living in the same household and the claim will lie. Just as the arrangements for maintenance may fluctuate, using Stephenson LJ's expression cited above, so the steadfastness of a commitment to live together may wax and wane, but so long as it is not extinguished, it survives. These notions are succinctly encapsulated in the judge's test, which was to ask whether the relationship was merely suspended, and I see no error in his approach.
25. Mr Goodall next submits that there was no evidence, or insufficient evidence, to justify the judge's findings of fact. This challenge to findings of fact is not sustainable. In deciding whether or not Mrs Gully was still living in the same household, the judge correctly had to ascertain her intentions and his. He rightly placed considerable importance on a letter Mrs Gully wrote shortly after the funeral of the deceased "because it gives a vivid and contemporaneous account of their relationship untailored to any claim under the Act (which was not contemplated at the time) and before Mrs Gully had had the benefit of any legal advice". In it she said:

"As you know, over the years there have been occasions when Tony's behaviour has been totally unreasonable, and you yourself have said to me that you do not understand why I put up with it for all these years. Well, I did put up with him and coped with him the best I could, and I want to be clear with you on one point. I would have been by his side at the end and I had hoped when I left Tony about three months ago that it would bring him to his senses and he would have stopped drinking. The relationship was not over, but on the advice of our lady doctor at the Orchard Medical Centre she said that for my own safety I should move out as soon as possible because Tony was out of control and likely to harm himself and possibly me."

26. The judge recorded evidence given to him as follows:

"Mrs Gully said in her witness statement and in her evidence under cross-examination that she wanted to go back to Mr Dix and hoped he would stop drinking and create a situation where it would be possible for the two to resume living together."

27. In her witness statement, none of which seems to me to have been rejected by the judge in his judgment, she said in her first statement:

"I would stress that although I was forced by a combination of the deceased's behaviour and my own illness to leave home, it was never with a settled intention to leave on a permanent basis. If it had been, I certainly would have cleared out everything from the house and taken it with me. The very point of just leaving with a suitcase of clothes was because I had every intention to return as soon as my health and circumstances improved. I have always gone back to him in the past after swearing I would not. It was the relationship we had and we both knew that when he spoke to me I would return."

28. In her second witness statement she said:

"In my mind my relationship with Tony was still ongoing and we were still a couple. I was simply having to live away from him for a short period of time to enable me to regain my strength and adjust to the disease that had recently been diagnosed. It was always my intention to go back to Tony. I understand that my daughter stopped Tony from speaking to me and I understand why she did this. I believe that had I spoken to Tony I would have gone back to him, as I had done in the past, and it was my daughter's view that this would not have been good for my long-term health. By the time Tony died my weight had increased and I was feeling a lot better and I suspect that in a very short period of time I would have returned home. I think I would have needed some help to cope with Tony, particularly if he continued to drink, but had he lived I think I would still have been living with him at home."

29. It seems to me that there was abundant evidence before the judge to establish that, so far as Mrs Gully was concerned, the relationship was not at an end. The very fact that her daughter concealed the telephone calls from her is an indication that, to those who knew her, it was obvious that she would have returned to live with the deceased the moment he asked her to do so. This was, after all, a relationship which had endured through pretty bad times for 27 years of mixed fortune. The judge was right to conclude that, whilst Mrs Gully entertained "the hope -- perhaps a vain hope -- that Mr Gully might stop or modify his drinking habits to such an extent that it would be possible for Mrs Gully to go back with him", that would be sufficient from Mrs Gully's point of view. A promise to change would have brought her back however unlikely others may have judged the prospects of his keeping his promise to be.
30. The judge was also right to consider "whether Mr Dix genuinely wanted Mrs Gully to come back to him". The judge rejected the defendant's case that he, the deceased, was happy to be shot of Mrs Gully, finding that it was not consistent "with his repeated telephone calls to Mrs Gully's daughter asking her to come back and eventually promising to buy a new bed so that she could come back. Nor was it consistent with (the neighbour's) evidence that, to him at least, Mr Dix said repeatedly that he wanted Anita to come back to him". It is clear on those findings which the judge was fully entitled to make that, so far as the deceased was concerned, the relationship was far from finished.
31. In my judgment, the judge did not err in law, nor in his findings of fact. He was right to make the declaration he did. I would dismiss this appeal.
32. LORD JUSTICE MUMMERY: I agree.
33. LORD JUSTICE RIX: I also agree.

Order: appeal dismissed