1. Family
provision – intestacy of deceased – applicant cohabitant of
deceased – entitlement to home – claims of widow and son –
impact of European Convention on Human Rights articles 8 and 14.
2. This
is an application by Gillian Bingham (“the plaintiff”) under the
Inheritance (Provision for Family and Dependents) (Northern Ireland) Order 1979
(“the 1979 Order”). Patrick Michael Guidera deceased (“the
deceased”) died intestate on 9 November 1998 at the age of 57 having been
born on 14 October 1941 leaving an estranged widow and one son, the defendant,
who is aged 30. The widow was born on 8 September 1934. The plaintiff
who had formed a relationship with the deceased in or about 1987 began to live
with the deceased in or about April 1989 and they continued to live together as
man and wife up until his death on 9 November 1998. The deceased died
intestate. The defendant took out a grant of letters of administration to the
estate on 27 January 2000.
3. Under
the rules of intestacy the estate falls to be divided between the
deceased’s widow and her son and the plaintiff receives nothing in the
estate of the deceased. It is accepted by the defendant that the deceased
failed to make reasonable financial provision for the plaintiff. It is clear
from the provisions of article 3(1) of the 1979 Order that a person qualified
to make an application under the Order may apply for an order on the grounds
that the disposition of the estate effected by the law of intestacy is not such
as to make reasonable financial provision for the applicant.
4. The
plaintiff and the deceased began to cohabit in April 1989 originally in rented
accommodation and from March 1991 in premises at 8 Boltnaconnell Road,
Crumlin, County Antrim (“the relevant premises”). The relevant
premises were purchased by the defendant in his sole name with the assistance
of a mortgage taken out by the deceased in his own name. The plaintiff
asserted in evidence and I accept that she made a contribution of £5,000
towards the original purchase price of the premises which was £64,000.
The repayment of the mortgage was made by standing order out of the
deceased’s own bank account. The plaintiff in evidence stated and I
accept that although the mortgage was paid out of the deceased’s account
parties effectively pooled their income from their joint resources.
5. The
deceased had married Mary Guidera on 30 December 1968. That marriage broke
down. The defendant blames the plaintiff for the breakdown, although the
plaintiff says and I accept that the marriage had broken down before her
relationship with the deceased began. Following the separation of the deceased
and the widow the deceased paid the widow a weekly sum for maintenance,
initially £50.10 per week and latterly £70.10 per week as from
February 1997. The contents of the former matrimonial home were divided equally.
6. The
deceased was a major in the regular army until he retired in or about April
1989. He then took up a position with the Territorial Auxiliary and Volunteer
Reserve Association (“TAVRA”) in or about May 1989. Following the
deceased’s death the widow has become entitled to a military pension of
some £400 per month, a pension of £132 from TAVRA and an old age
pension of £280 per month.
7. The
deceased’s estate has a value of some £343,992.90 with the relevant
premises being valued at £125,000 with contents of £30,000. The rest
of the estate appears to be in largely liquid form comprising life assurance
policies, shares and units and some £65,000 in bank and building society
accounts.
8. The
plaintiff is a qualified physiotherapist. She is employed by a health trust
and earns £1,300 per month. She formerly additionally carried on a
private practice in premises belonging to her mother which she renovated for
her professional use. She no longer carries on the private practice there, a
locum now carrying on the practice and effectively meeting the costs of funding
the renovation expenses. In addition the plaintiff earns £1,000 a year in
tax free bounty in respect of service in the TA and additionally earns about
£1800 per year, subject to tax, as a TA captain.
10. The
defendant in his evidence indicated that in or about September 1999 following
the death of the deceased the widow and he agreed to purchase a house for the
widow. She now resides at 30 Dillon Heights, Armagh and pays the mortgage
element of the mortgage which amounts to about £300 per month with the son
paying the endowment element which is £150 per month. The house is in
joint names and was purchased for £77,000.
11. The
defendant worked for the RUC for some 12 years, but was medically retired
following a car accident. He is in receipt of a pension of £960 per
month. He asserted that he had a close relationship with his father and
alleged that the deceased promised that he would ultimately get the
deceased’s house. The defendant produced no medical evidence to show
that he is unfit to work and he appears to be a relatively fit young man. I
was not satisfied on the evidence that the defendant was as close to his father
as he suggested although I do accept that he and his father were on good terms.
12. Under
the rules of intestacy the widow is entitled in addition to the personal
chattels to £125,000 free of duties, charges and costs with interest from
death and to one half of the residue. The defendant as the surviving issue of
the deceased is entitled to the remainder of the estate.
13. The
plaintiff’s claim is based on the proposition that she qualifies under
article 3(1)(ba) of the 1979 Order as amended by the Succession (Northern
Ireland) Order 1996 (“the 1996 Order”), that is to say she is a
person who during the period of two years ending immediately before the date of
death was living -
14. Although
the provision requires that the person should have been living for the
qualifying period as husband and wife it clearly refers to persons who were
solely together without actually being married. A spouse may bring a claim
within article 3(1)(a) and a former spouse within paragraph (b).
15. The
defendant accepts that the plaintiff qualifies under article 3(1)(ba) of the
1979 Order and that the laws of intestacy do not make reasonable provision for
her. The real issue in the case accordingly is what reasonable provision
should be made for the applicant.
16. Article
5 of the 1979 Order sets out the matters to which the court must have regard in
exercising powers under article 4. These include the financial resources and
needs of the applicant presently or in the foreseeable future, the financial
resources and financial needs which any other applicant is likely to have, the
financial resources and financial needs of any beneficiary of the estate of the
deceased, any obligations and responsibilities which the deceased had towards
any applicant for an order under article 4 or towards any beneficiary of the
estate, the size and nature of the net estate of the deceased and any physical
or mental disability of the applicant or any beneficiary. The court is also to
have regard is paragraph (g) to any other matter including the conduct of the
applicant or any other person which in the circumstances of the case the court
may consider relevant.
17. In
the case of a person qualifying under article 3(1)(ba) the 1979 Order as
amended by the 1986 Order the court must in addition to the matters
specifically mentioned in paragraphs (a) to (f) of article 4(1) have regard to:
18. The
meaning of reasonable financial provision in the case of an application by a
spouse means “such reasonable financial provision as it would be
reasonable in all the circumstances of the case for a husband or a wife to
receive whether or not that provision is required for his or her
maintenance”.
19. In
the case of any other applicant under article 3(1) it means “such
financial provision as it would be reasonable in all the circumstances of the
case for the applicant to receive
for
his maintenance
”
(italics added)
20. The
applicant argues that in her case her entitlement to reasonable financial
provision would be satisfied by a transfer to her of the relevant premises and
contents and the payment to her of a sum of £10,000 to meet the costs of a
new car to replace the deceased’s motor vehicle, a Rover 400, which the
defendant had removed and sold. The respondent argues that this would go
beyond reasonable maintenance in all the circumstances of the case and even if
the court were minded to permit the applicant to continue to reside in the
premises that could be achieved by granting her a limited nature such as a life
estate or a licence to occupy which would ensure that the beneficiaries in the
estate would retain an interest in the premises in the long term.
21. It
is necessary to consider the relevant principles to be applied in considering
the application as applied before the incorporation of the European Convention
on Human Rights (“the Convention”) and then to consider the impact,
if any, of the Convention on the proper modern approach to the application.
23. The
issue for the court is whether considered objectively reasonable financial
provision was made for the applicant and if not what reasonable financial
provision should be made.
24. The
ordinary standard which applies to applicants other than spouses means such
financial provision as would be reasonable in the circumstances for her to
receive for her maintenance. Under the provisions of the 1960 legislation that
was also the standard for surviving spouses but as noted the 1979 Order has
widened the scope for reasonable provision in the case of spouses. This change
followed changes in the English legislation which had been recommended by the
Law Commission in its report No. 61 primarily because restricting spouses
applicants to a claim for maintenance could result in a sum being awarded which
was considerably less than would be awarded if the marriage had ended in
divorce rather than death.
25. The
concept of maintenance, however, is not capable of precise definition. As Goff
LJ pointed out in
Re
Coventry
[1979] 3 All ER 815 at 819:
26. In
the case of an application by a surviving spouse the prevailing approach in
England has been to give pre-eminence to the question as to what provision the
applicant might reasonably have excepted to receive if on the day that the
deceased died the marriage had been terminated by divorce. Thus in
Re
Moody
[1992] 2 All ER 542 at 533 Waite J stated that:
27. This
approach was followed in this jurisdiction in
Re
Morrow
(1995) NIJB 46 (see in particular the remarks of Campbell J (as he then was) at
51).
28. Until
the changes of the law effected by the 1996 Order and its English equivalent in
claims by cohabitants the court was concerned to see whether the deceased was
maintaining the defendant In this context the deceased was to be deemed to be
maintaining a person if the deceased otherwise than for full consideration made
a substantial contribution in money or money’s worth to the reasonable
needs of that person. When the flow of benefits between an unmarried couple
living together as man and wife had been broadly commensurate that would
demonstrate that the applicant had given full valuable consideration for the
benefit conferred (thus negativing maintenance) but if there had been an
obvious imbalance between the benefits because those conferred by the deceased
on the applicant outweighed those conferred by the applicant on the deceased
that would demonstrate that there had been substantial contribution by the
deceased towards the applicant’s needs (thus establishing maintenance).
In
Bishop
–v- Plumely
[1991] 1 All ER 236 the deceased provided a secure home for his partner and the
partner provided connubial services. That demonstrated to the court’s
satisfaction that the deceased had made a substantial contribution towards the
needs of the cohabitant for the purposes of the statutory provision. That case
demonstrates that at least for the purposes of article 3(2) the provisions of a
home can be regarded as maintenance.
29. The
provisions of the 1996 Order give qualifying cohabitants a right to make a
claim under the 1979 Order without the necessity of proving that they were
being maintained within the meaning of the Order. It was somewhat distasteful
to require a cohabitant to prove that he or she was getting back financially
from the relationship more than she was putting into it. As Butler Sloss LJ in
Bishop
–v- Plumely
[1991] 1 All ER 236 at 242 stated:
30. The
question arises as to effect if at all the Convention and in particular article
8 has on the issues raised in the present case. Article 8 provides:
34. Rules
of succession which come into play following the death of a member of the
family on one view do not of themselves prevent those concerned leading a
normal family life during their lifetime, a view to which the Commission by a
majority subscribed. The Court, however considered that matters of intestate
succession and of disposition between near relatives were intimately connected
with family life. The Court went on at paragraph 53-55 to state:
35. The
applicants in that case further alleged that in violation of article 8 there
had been an interference with and lack of respect of family life on account of
their status under Irish law. They cited by way of illustration the absence of
mutual maintenance obligations and mutual succession rights. The court in
paragraph 68 of the judgment pointed out:
36. In
recent years there have been rapid and far reaching changes in society’s
attitudes and norms in respect of interpersonal adult relationships. While the
married state in the past was regarded as the only legitimate form of state
sanctioned relationship having legal privileges and consequences and
cohabitation was regarded as illicit and socially unacceptable, modern
attitudes no longer accept such an approach. The provisions of the 1996 Order
give tangible legal expression to this ongoing and developing change of
attitude and is a recognition that the law must recognise the reality of modern
society. The increase in the number of cohabitional relationships, the
decrease in the number of married relationships as a consequence and the
increase in the number of both cohabitional and married relationships which
individuals may form in a life-time may call for a review of legal norms and
practices which presently lag behind societal developments (see generally the
comments of the Law Reform Advisory Committee’s Report on Matrimonial
Property (LRAC No. 8, 2000). In some jurisdictions such as the States within
the Commonwealth of Australia the legislatures have made detailed provisions
for property and succession rights of parties to de facto relationships. It is
not, however, permissible for the courts to pre-empt legislative change or to
determine what policy changes are or may be called for to deal with prevailing
circumstances in this field. This is an area par excellence which calls for
careful reflection, consultation and democratic debate. The state’s
margin of appreciation in determining how best to deal with the succession
rights of cohabitants as compared to spouses must be fully respected.
37. While
the relationship between spouses and cohabitants share common features the law
continues to distinguish between the two statuses and the two cannot be equated
either in law or in fact. The Convention itself in article 12 recognises the
special status of marriage as a right which the state must uphold. In
Cossey
–v- United Kingdom
13 EHRR 622 at 642 the court stated that it could not be said that there was
any general abandonment of the traditional concept of marriage. Since the two
relationships differ in law and in fact differential treatment (inter alia) in
the field of succession rights can be justified provided that the state’s
succession law recognises that the cohabitional relationship is a family
relationship within article 8 of the Convention and calls for special
protection.
38. The
prohibition under article 14 of discrimination on the ground of status and the
enjoyment of the rights and freedoms set forth in the Convention does not mean
that there can be no distinction drawn between the rights of cohabitants and
spouses in succession rights. There is a principle of domestic, community and
convention law that comparable situations call for comparable treatment. Since
the relationship of co-habitants and spouses differ differential treatment can
be justified.
39. The
provisions of the 1986 Order modifying the 1979 Order in introducing a form of
succession law protection for cohabitants represent the legitimate outcome of
the balancing exercise which the state must perform in order to comply with
article 8 obligations to ensure proper respect to be afforded to the family
life of cohabitants.
40. A
further and separate question arises as to whether anything in articles 8 and
14 and article 1 of the First Protocol affects or qualifies the way in which
the court should exercise its powers under article 4 of the 1979 Order.
41. As
noted the legislation represents the legitimate proportionate exercise by the
state of giving effect to the respect due to the family relationship which
exists between the cohabitants. It calls for the exercise of a balanced
judgment by the court as to what would represent a fair and reasonable
assessment of the financial provision to be made in favour of a person such as
the applicant taking account of the circumstances of their relationship. The
court in exercising its powers is thus called on to give effect to the proper
respect due in respect of the relationship. In carrying out the exercise in
the light of all the circumstances it must take account of and protect the
rights of the widow and son who also had a family life with the deceased.
42. Article
8 calls for respect for everyone’s home. The relevant premises
constituted and still constitute the plaintiff’s home, the term
“home” being an autonomous concept which does not depend upon
classification under domestic law but on the factual circumstances namely the
existence of sufficient and continuous links (
Buckley
–v- UK
(1996) RJD, 1996 – IV No. 10). In this instance the plaintiff has an
equitable interest in the relevant premises at least proportionate to her
direct contributions to the purchase price. The evidence falls short of
establishing a greater equitable interest by virtue of indirect contributions
in the absence of an understanding or arrangement between the applicant and the
deceased that her indirect contributions would increase her beneficial interest
in the premises. As an equitable tenant-in-common of the premises she is
entitled to occupy the property until sale or partition of the premises is
effected. Under the provisions of the Partition Acts 1868 to 1876 the personal
representative of the deceased would be entitled to bring proceedings for a
sale of the property, partition being impractical. Heretofore it was the
prevailing view that the jurisdiction to order sale was not of a discretionary
nature although in
Ulster
Bank –v- Carter
[1999] NI 93 the court left open the question whether the court could decline
to make an order in an application by one spouse (or his or her mortgagee)
against the other. Article 49 of the Property (Northern Ireland) Order 1997
confers a power on the court to impose a suspension or conditions in the making
of an order under the Partition Acts 1868 to 1876. In exercise of that power
now it may be that court must take into account the provisions of article 8 and
have regard to the home rights of the party in occupation.
43. The
court must in addition balance the interests of the other co-owner (in this
instance the estate of the deceased) who has a right under article 1 of the
First Protocol to the peaceful enjoyment of his possessions. Enjoyment of
one’s possessions would normally imply a right to realise that interest
in appropriate circumstances although the property rights of individuals can
properly be qualified in the public interest and subject to conditions provided
for by law.
44. There
is limited European case law on this aspect of article 8. In
S
–v- UK
(1986) 47 DR 274 the lesbian partner of the deceased brought an application
alleging a violation of Article 8. The deceased had been a secured tenant of
premises under the Housing Act 1980. The applicant and deceased lived together
in a relationship equating to that of husband and wife for a number of years
before death in the premises. Following the death of the deceased the
applicant was required to vacant the premises. She alleged that she and the
deceased were in a family relationship and that her interest in the premises at
her home was not being respected. The Commission rejected her contention that
there was a family relationship considering that a stable homosexual
relationship between individuals did not fall within the scope of the right to
respect for family life as assured by article 8. The Commission concluded that
on the death of the partner under the ordinary law the applicant was no longer
entitled to remain in the house and the local authority was entitled to
possession so that the house could no longer be regarded as “home”
within the meaning of article 8. The approach of the Commission on the issue
of homosexual relationships may require reconsideration in the light of
changing attitudes (see for example the comments of Lord Slynn in
Fitzpatrick
–v- Sterling Housing Association
[1999] 4 All ER 705. However that may be, Stammer on European Human Rights Law
at 579 states:
45. In
the present case the parties were in a heterosexual relationship and the
plaintiff had an equitable interest in the relevant premises. Both those
factors clearly distinguish the present case from
S
–v- UK
.
46. The
degree of respect which must be afforded to the individual’s home under
article 8 in a case such as the present must depend on all the circumstances of
the case including the rights and interests of the widow and son in the
intestacy of the deceased and in respect of their moral claim to a share
thereof. In considering the circumstances which are relevant under article
5(1)(g) the court must have regard to the provisions of article 9. Article 9
however does not in itself mean that the plaintiff must succeed in her argument
that she should be entitled to the relevant premises or to a particular form of
interest therein.
47. The
following factors, however, lead me to the conclusion that in the balancing of
the interest of the parties and taking account of the family relationship
between the deceased, the applicant, the widow and the son the court should
accede to the applicant’s argument that she should be entitled to remain
in the dwelling house and enjoy its contents though I do not accept the
argument for a further capital sum. Thus:
48. The
house and contents together represent a significant part of the estate which
will reduce the final amount divisible between the widow and son. It is right
that the applicant should have a right to remain in the house as long as she
needs to do so and when she moves it is right that she should be in a financial
position to buy other suitable accommodation. However if she remains single
when she sells the premises it is likely that she will require smaller
accommodation. If she forms another relationship, married or unmarried, then
the likelihood is that a new partner will contribute to joint resources. In
these circumstances I consider that it is right to provide that the applicant
should be entitled to receive the relevant premises for the full interests of
the deceased therein but subject to a charge on those premises for the sum of
£25,000 (index linked) realisable and payable to the personal
representative of the deceased on the happening of the first of any of the
following events.
49. The
sum of £25,000 shall be index linked and increased on 1 January in each
year by the appropriate amount of inflation established by the retail price
index. The said sum when paid to the personal representative of the deceased
shall be held in trust for the widow during her lifetime with the remainder to
the defendant.
50. Having
regard to my decision it is necessary to make consequential directions under
article 4(4) in order to achieve fairness between the beneficiaries.
51. Under
section 18 of the Administration of Estates Act (Northern Ireland) 1955 where
only part of the estate is left by will the residue is divisible as on a
partial intestacy in accordance with section 18. A direction to apply the
residue of the estate (after providing for the plaintiff in accordance with the
rules of intestacy on current figures would roughly result in the widow
receiving a sum of £154,500 and the son £29,500. Bearing in mind
that the defendant has received a lump sum of £29,000 from TAVRA and
taking account of my directions in relation to the sum of £25,000 charged
on the premises as aforesaid the overall result of a distribution of the
balance of the estate as on a partial intestacy achieves broad justice and I so
direct.