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Scottish Sheriff Court Decisions
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Savage v. Purches [2008] ScotSC 34 (19 December 2008)
URL: http://www.bailii.org/scot/cases/ScotSC/2008/34.html
Cite as:
[2008] ScotSC 34,
2009 GWD 9-157,
2009 Fam LR 6,
2009 SLT (Sh Ct) 36
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SHERIFFDOM OF TAYSIDE, CENTRAL AND
FIFE AT FALKIRK
JAMES SAVAGE, residing at 21 Blackside
Drive, Blackridge.
PURSUER
against
SANDRA PURCHES,
qua Executive Dative of the late Graham Oswald Voysey, residing at 127 Gloucester
Avenue, Chelmsford.
DEFENDER
FALKIRK,
19
December 2008
The
Sheriff, having resumed consideration of the cause, FINDS THE FOLLOWING FACTS
TO BE ADMITTED OR PROVED:
- The Pursuer is James Savage,
formerly known as Keith Savage, residing at 21
Blackside Drive,
Blackridge. He is aged 31. He has a Batchelor of Arts Degree in
Hospitality Management from Caledonian
University,
Glasgow
and is currently self employed as the principal of a letting agency,
letting and managing properties in the greater Edinburgh
area. The Defender is Mrs Sandra
Purches, residing at 127
Gloucester Avenue, Chelmsford. She is aged 57 and is employed by
British Home Stores in Chelmsford.
- The Defender was appointed
Executrix Dative on the estate of the late Graham Oswald Voysey on 6 September 2007. Mr Voysey was born at Glasgow
on 16
September 1962 and died at Stirling
on 28
April 2007, aged 44. At his date of death Mr Voysey was a
business project director employed by British Telecom. Immediately before his death Mr Voysey
was domiciled in Scotland
and was habitually resident within the Sheriffdom of Tayside, Central and Fife
at Falkirk. He was co-habiting with the Pursuer and
had so co-habited for a continuous period from 4 October 2004
until his said date of death on 28 April 2007. They co-habited: (a) from 4 October 2004
until 7 July 2006 at 14 Abbotswood Close, Tadley, Hampshire; and (b) from
7 July 2006 to 28 April 2007 at 47 Wallace Brae Bank, Reddingmuirhead,
Falkirk.
- Mr Voysey died intestate and
without issue. He was survived only
by a sister of the half blood, namely the Defender. Mr Voysey's parents, Margaret McCartney
and Oswald Somerville, pre deceased Mr Voysey. The Defender is the child of Margaret
McCartney. Oswald Somerville had a
child, June Somerville, born 28 June 1950. June Somerville was accordingly a sister
of the half blood of Mr Voysey.
June Somerville was adopted as a child. Mr Voysey was unmarried and had never
been married. He had not entered
any civil partnership with any person.
- Confirmation in favour of
the Defender being made on 21
January 2008, the gross value of the estate
at that date was £421,460.84, and the net value of the estate as at that
date was £213,272.88. Reference is
made to Confirmation of the Estate produced as 6/7/2
of process. Mr Voysey's net intestate
estate comprises heritable property at 47 Wallace Brae Bank,
Reddingmuirhead and at 58 Leyland Road, Bathgate together with household
furniture and effects, a sum in credit at Barclays Bank, a balance in
credit in a credit card account with Capital One, 224 ordinary shares in
BT group and an amount payable in terms of a Zurich Insurance Limited life
insurance policy. At the date of Mr
Voysey's death the subjects at 47 Wallace Brae Bank, Reddingmuirhead had a
value of £250,000 and was subject to a secured mortgage of
£87,856.95. The household furniture
and plenishings as at the date of death were worth approximately
£599. This property has not been
placed on the market for sale. The
balance due on the mortgage over the subjects at 58
Leyland Road,
Bathgate, was £98,710.77 as at the date of death. The subjects have been placed on the
market for sale. But for the
Pursuer's crave for transfer of the property at 47 Wallace Brae Bank,
which has necessarily delayed the marketing of the subjects, the earliest
the property could have been marketed was following the date of
Confirmation in January 2008.
- Parties had agreed between
them that as at 25 September 2008, on the assumption that each of the said
properties had the same value as at the date of death, and further
assuming that no intervening incoming expenditure had occurred on the estate,
and further assuming that the mortgages secured over the properties had
increased to £89,023.83 and £110,448.57 respectively (figures agreed
between the parties), the gross asset total of the estate was £424,246.36
and further that prior to deduction of any executory fees and expenses of
administration, the net value of the estate is £190,921.45, Expenses
incurred in respect of the administration of the estate comprised the sum
of £4808.25, which expenses were properly deductible from the net
intestate estate.
- Following and in consequence
of Mr Voysey's death, the Pursuer received the sum of £124,840.00 being a
half share of the lump sum death benefit payable from the BT pension
scheme at the discretion of the Trustees of the said scheme. Mr Voysey left no specific written
indication of how he wanted the lump sum death benefit to be paid and had
not completed the relevant "Expression of Wish" form. Reference is made to productions 5/2/9,
5/2/10
and 5/3/21
of process and Affidavit of James McMillan, dated 15 September 2008
produced on behalf of the Pursuer.
The balance of the said whole lump sum of £249,680.00 payable from
the BT pension scheme, comprising also a half share thereof, was received
by the Defender following and in consequence of Mr Voysey's death. She received the same half share,
comprising £124,840, in her capacity as the half-sibling of Mr Voysey and
not in her capacity as Executrix Dative.
- Following and in consequence
of Mr Voysey's death,the Pursuer receives and will receive an adult
dependant's pension from the BT pension scheme. The gross annual pension payable to him
is £9,530.40. The said pension is
taxable and does not form part of Mr Voysey's estate, being payable at the
sole discretion of the Trustees of the BT pension scheme. Reference is made to productions 5/2/11,
5/2/13
and 5/3/12. The said figure is subject to
inflationary increases. As at 29 April 2007,
the day following the date of death, the net replacement value of the
pension rights received from the said scheme by the Pursuer is reasonably
valued at £298,900, being an estimate of what sum would require to be paid
to an insurance company to secure an annuity to replicate such
income. Reference is made to Mr
John Buchanan's report of 14
August 2008 produced as 6/8/1
of process.
- The Pursuer held an
additional card on Mr Voysey's MBNA Europe Visa account. The Pursuer expended the sum of £383.11 after
the death of Mr Voysey on the additional credit card held by the
Pursuer. The Pursuer made payment
of the sum of £383.11 to Mr Voysey's credit card account by cheque made
payable to MBNA Europe dated 22 August 2008. The said cheque cleared through the
Pursuer's Lloyds TSB Bank account on 26 August 2008.
- The Pursuer and Mr Voysey
met and commenced a relationship while in England
in July 2004. They co-habited
during the dates set out in para 2, supra.
The relationship was intimate.
The Pursuer and Mr Voysey were persons of the same sex who lived
together as if they were civil partners during the said periods. The Defender is the sole
beneficiary of Mr Voysey's net intestate estate in terms of the Succession
(Scotland)
Act 1964. But for the claim of the
Pursuer in terms of this action the Defender would be entitled to the
whole of Mr Voysey's net intestate estate.
In terms of Sections 8 and 9 of the Succession (Scotland) Act 1964,
had the parties been civil partners, the Pursuer would have been entitled
to the whole value of Mr Voysey's net intestate estate by the exercise
of: (a) prior rights in terms of
Section 8 to the dwellinghouse in which they lived and to the furniture
therein to a maximum value of £324,000 including any secured lending. In these proceedings the said property
at 47 Wallace Brae Bank, being the home of Mr Voysey and the Pursuer, has
equity of £162,143.05, the furniture a value of £599; and (b) prior rights
in terms of Section 9 in Mr Voysey's remaining net intestate estate to
financial provision on intestacy to a maximum of £75,000. In these proceedings the said claim
would exhaust the remainder of the estate.
- During the tax year 2004 to
2005 the deceased's gross income was £67,990.34. For the tax year 2005 to 2006 his said
income was £71,685.16. For the tax
year 2006 to 2007 his said income was £75,982.34. The income of the Pursuer prior to
September 2004 was £18,500 gross per annum. His outgoings were approximately as set
out in schedule produced by the Pursuer as 5/3/16
of process. He owned a 2 bedroom
property in Polmont with £60,000 worth of equity therein. He had £5000 of savings approximately. His late father had died in the Piper
Alpha tragedy and he had funds in trust available to him in the region of
£140,000 to £160,000. He had no
other assets. From the commencement
of co-habitation with the deceased, the Pursuer's outgoings were as set
out in the schedule produced by him as 5/3/17 of
process. When the Pursuer and Mr
Voysey met the Pursuer was working in the hospitality industry in England
living in accommodation which was a benefit in kind worth approximately
£330 per month upon which he was taxed as a benefit.
- The deceased and the Pursuer
moved to Scotland
in July 2006 when the deceased purchased the property at Wallace Brae Bank
in his own name. The Pursuer made
no contribution to the mortgage. He
offered no rental payments to the deceased. The parties had no joint account in any
bank or building society. Any
future civil partnership was never discussed between them. The issue of life insurance policy or
cover was never discussed between them.
The issue of future wills was never discussed between them. The Pursuer elected to change his career
path in the course of the relationship by moving into his current self
employment and was supported therein and was accordingly fully dependant
on the deceased for a period of at least a year. It took about a year to 18 months before
the Pursuer could take a salary from his new self employment as he sought
to build the business up. For the
tax year to April 2005 the Pursuer received an income of £15075.70. For the tax year to April 2006 the
Pursuer received income of £2,532.
For the tax year to April 2007 the Pursuer received income of
£23,024.91.
- When he was able to, the
Pursuer carried out limited ad hoc shopping and paid for dog grooming for
the 2 dogs which the deceased gave to him as presents and for ironing
which they "sent out". The deceased
kept certain financial information to himself and did not share it with
the Pursuer. The Pursuer had no
knowledge that the deceased had taken out life cover, nor was he aware
that the deceased had not paid off certain balances on his credit cards.
- During the calendar year
2005 the deceased and the Pursuer took 5 separate foreign holidays namely
to Toronto
and Montreal
in January, to Orlando
in May, to New York
in August, to Orlando
(again) in October and to Paris
in November. In 2006 they holidayed
in New England,
USA,
and New York. Reference is made to schedule of
holidays produced by the Pursuer as 5/2/14 of
process. The deceased bought a
Volvo motor car for the Pursuer with a private number plate which matched
the number plate on his own Jaguar motor car.
- The deceased had a loving
relationship with the Pursuer which lasted approximately 2 years 8
months. The deceased also had a
loving and life long relationship with his half sister. They had a very troubled childhood and
lived together with their mother for the first 11 years of the deceased's
life. They kept in touch by
irregular telephone contact and visits.
The Defender visited the deceased in Scotland,
staying at their home at Wallace Brae Bank on several occasions. She left a toilet bag and clothing
there. During the deceased's period
in Scotland
the Defender spoke to him by telephone approximately every 2 to 3
weeks. The Defender gave consent as
next of kin to medical staff at Stirling Royal Infirmary when instructions
were sought by them to switch off life support equipment in respect of the
deceased. The Defender personally
scattered the deceased's ashes on a beach subsequent to his funeral.
- The deceased had a
relationship of approximately 15 years in duration prior to meeting the
Pursuer with Mr Mark Anbery, whom the deceased had named as a beneficiary
in a prior will which the deceased subsequently destroyed. The Pursuer and the deceased at no stage
discussed their testamentary intentions.
Mr Voysey completed an "Expression of Wish" form in respect of the
BT pension scheme in favour of Mr Anbery on 15th November 2001,
(see 6/8/5(b)
of process). No such steps were
taken by Mr Voysey in respect of the Pursuer.
16.
The Pursuer continues to own his
original property in Polmont. He has an
account with Northern Rock containing approximately £138,000. He has approximately £90,000 invested in
TESSAs, long term bonds and the stock market in respect of the Piper Alpha fund
referred to supra. He receives an annual
BT pension, referred to supra. He lives
currently in rented accommodation.
FINDS
IN FACT
AND
LAW that the Pursuer and the deceased being co-habitants in terms of Section 25
of the Family Law (Scotland) 2006, the deceased died intestate and immediately
before death was domiciled in Scotland and co-habiting with another co-habitant
(the Pursuer), the Pursuer is entitled to a right in relation to succession on
the estate of the deceased in terms of the said Act, but that having regard to
the provisions of Section 29(2)(3)(4) and (10), the quantum of the said claim is
assessed at NIL.
Therefore,
SUSTAINS the pleas in law on behalf of the Defender; REPELS the Pursuer's pleas
in law; PRONOUNCES decree of absolvitor; FINDS no expenses due to or by either
party; CERTIFIES Mr John Buchanan as an expert witness; and SANCTIONS the
instruction of junior counsel for the proof diet.
NOTE
- At the proof in this action
the Pursuer was represented by Miss Brabender, Advocate, and the Defender
by Mr Monaghan, Solicitor, who greatly assisted the Court in their skilled
presentation of the evidence and focussing of the issues by way of
submissions and the tendering of a substantial joint minute at the outset
of the proof. In this note I do not propose to rehearse the lengthy
findings in fact, supra, and have sought to expedite matters by making
reference to relevant productions in the course of the said findings.
- In a case such as this the
Court is placed in the awkward position of a historical observer of the
life of a deceased person. At the
outset may I record my very strong impression that the deceased was an
individual of high character who was extremely generous to all friends and
family and in particular to the Pursuer.
He was in return deeply popular with a small but close circle of
friends, all living in England. Mr John Pickering gave evidence for the
Pursuer and a large number of affidavits were lodged in broadly similar
terms, all speaking to the character of the deceased and the apparent
closeness of his relationship with the Pursuer, which I have found to be authentic. It was notable that none of the deceased
friends from England
had visited him while in Scotland,
however. The other witnesses led by
the Pursuer comprised the Pursuer's mother who spoke to her introduction
to the deceased in September 2004 and her view that the relationship was
obviously serious. She was not
cross-examined. T he other witness
led for the Pursuer was Mrs Theresa McPherson, an American national who
was a neighbour at Wallace Brae Bank.
She formed an impression that the Pursuer and the deceased were a
couple but they and she did not discuss their personal lives. She was a cheerful, credible and
reliable witness who advised that she had not been inside the house at 47
Wallace Brae Bank until the deceased's hospitalisation in late April
2007. For the record I also found
Mrs Savage and Mr Pickering to be credible and reliable witnesses but
their collective evidence was, at best, in my view, marginal. Mr Pickering and Mrs McPherson were not
cross-examined.
- The key witness in the
Pursuer's case was initially the Pursuer himself. I found him to be a witness of limited credibility
and reliability. When he met the
deceased he was a young man earning a modest income, living in tied
accommodation in the hospitality industry.
When he moved in with the deceased in England
and then thereafter in Scotland
his quality of life, in terms of his general standard of living appears to
have increased considerably. In the
Findings in Fact I have noted, the many foreign holidays taken in the
course of the relationship, for example the New
York holiday in August
2005 which included including a stay at the Waldorf Astoria Hotel. The Pursuer was given 2 dogs by the
deceased and was able to send them for grooming every 2 to 3 weeks. They also "sent out" their ironing. On the Pursuer's own account the bill
for ironing was £70 every 2 to 3 weeks, the Pursuer having "a big
wardrobe". The deceased bought a
Volvo motor car for the Pursuer and they had matching number plates paid
for again by the deceased. The vast
bulk of holiday and general living expenditure was paid by the
deceased. The deceased wholly
supported the Pursuer in his elected change of career as referred to in
the Findings in Fact for a considerable period during their
relationship. The Pursuer paid no
rent to the deceased and offered no mortgage contribution, and indeed made
no such offer in respect
thereof during the whole of the parties' relationship. They had no joint account. The Pursuer was not named in the
relevant "expression of wish" form relevant to the pension on death
referred to in the findings in fact, nor did the deceased and the Pursuer at
any time discuss their testamentary intentions or any plans to enter a
civil partnership. The Pursuer gave
evidence with regard to civil partnership in terms that "Everyone I know
who has done it has been together for some time." He obviously did not view his own
relationship with the deceased as fitting into that category of
longevity. The issue of life cover,
further, was not discussed, although unknown to the Pursuer the deceased
started a policy with Zurich Assurance.
The deceased kept certain financial details to himself, such as
this policy and his level of credit card debt, and indeed I formed the strong
impression that the deceased kept a considerable part of his life private
from the Pursuer, including such financial details and to a large extent
the closeness of his relationship with the Defender.
- The Defender was described
by the Pursuer in paperwork comprising hard copy and email correspondence
with BT pension scheme officials, produced as 5/3/21 of process as
"distant" (Mr Kevin Dool's report following his meeting with the Pursuer
on 15th May 2007).
Following, however, receipt by the Pursuer of a BT pension scheme
letter of 2nd July 2007 (5/2/9) intimating that there was a
lump sum death benefit available in the sum of £249,680.00, the Pursuer's
description of the deceased's relationship with the Defender changed from
"distant" as set out at his said meeting with Mr Dool on 15th
May 2007 to "estranged" in the Pursuer's own email of 12th July
2007 to Mr Jim McMillan of the BT pension scheme secretariat. In that email, produced at pages xi and
xii of 5/3/21, the Pursuer stated "We had one or two conversations,
regarding wills and Graham had said that I would be well provided for as
he had no family other than an estranged half sister, and that basically
everything would be left to me, as even previously he had not named his
estranged sister as a beneficiary...
I know that Graham's wish was for me to receive all the benefits
due from his pension scheme." I
regret to record that this email content did not accord with the evidence
given in Court by the Pursuer in respect of these matters. Further, it did not accord with my assessment
of the deceased's relationship with the Defender. On these matters I found the Pursuer to
be exaggerating in the interests of advancing his financial claim. When the terms "distant" and "estranged"
were put to the Pursuer, he appeared to equiparate the two in his oral
evidence. That is not my assessment
of the tone and content of the said email and the report of meeting of 15th May
2007 by Kevin Dool. Indeed, I formed an impression of the
Pursuer as he gave evidence and as I observed his demeanour as he sat in
Court throughout the case beside his solicitor, to be that of one who exuded
a sense of self entitlement. In the
most moving passage of evidence, given by the Defender when she narrated,
in a very personal and vulnerable manner, the extremely difficult
childhood which she shared with the deceased, I noted that the Pursuer, seated
with his solicitor at the table, was simply taking notes and appeared
entirely unmoved. That was very
much his demeanour throughout the whole of his own evidence in which the
words used by him to describe his relationship with the deceased did not
match his detached manner in the witness box as I observed him. He repeatedly spoke of himself and the
deceased as young and healthy and accordingly never contemplating what
would happen if one of them died.
He specifically stated in chief that "We never discussed what would
happen if one of us died". He
specifically stated that wills and testamentary intentions were never
discussed. Yet in the said email of
12th
July 2007, having been given notice
that a sum just short of £250,000.00 was potentially available, he stated
in writing, as referred to above, that "We had one or two conversations,
regarding wills". The tenor of his
evidence focused on their mutual good health and this was the only and
specific explanation offered by the Pursuer for there being no discussion
of wills or provision on death. In
the final paragraph of the said email however he stated "I know that
Graham's wish was for me to receive all the benefits due from his pension
scheme". I have found there to be
no shred of foundation for the claims advanced by the Pursuer in that
email, examining his own evidence and the other voluminous documentation
lodged on his behalf by his solicitors.
Accordingly, in respect of this significant chapter of evidence, I have
found the Pursuer to be an incredible and unreliable witness. In so far as any of his evidence
conflicted with the evidence of the Defender in respect of the
relationship between the Defender and the deceased, I prefer entirely the
evidence of the Defender, whom I considered to be a highly impressive and
wholly genuine witness, whose testimony matched well with the
documentation lodged on both sides of the bar and who expressed the
warmest and most authentic emotion heard in Court in the case in respect
of the deceased as a much loved and missed sibling. Throughout his parole evidence the
Pursuer sought to minimise and marginalise the role of the Defender in the
deceased's life. Having heard the
whole evidence I simply cannot accept that as in any way accurate. Instead, I assess the Pursuer as seeking
to mislead the Court in respect of these important facts in pursuit of his
claim to the deceased's net intestate estate as advanced in craves 1 and
2.
- It was clear that the
deceased was able to provide a considerably enhanced standard of living
for the Defender with significant gifts including a Volvo motor car,
holidays, and rent free accommodation, not to mention the opportunity to
make a career change which was in effect wholly subsidised by the deceased. In the light of this and the Pursuer's
approach to the lump sum death benefit as evidenced in the correspondence,
when taken together with his demeanour in Court and the way in which he
sought to present his claim, I have determined that there was a distinct
whiff of avarice about the whole action raised by the Pursuer.
- In inviting the Court to
make formal orders, counsel for the Pursuer moved for an order in terms of
Crave 1 of payment of a capital sum of £186,113.20, to be expressed alternatively
as 100% of the net intestate estate of the deceased. In the alternative Counsel moved for an
order in terms of Crave 2 for transfer of the heritable property at 47
Wallacebrae Bank on an undertaking to be given by the Pursuer that he will
make a balancing payment on the estate of the deceased.
- Counsel submitted that the
preliminary qualifications to the Pursuer's claim, comprising
co-habitation in terms of Section 25, and intestacy and domicile in terms
of Section 29(1), having been met and not at issue between the parties,
the Court had discretion in terms of Section 29(2) having regard to the
matters mentioned in Section 29(3) to make an order for payment of a
capital sum or for transfer of heritable or moveable property. She emphasised that the only ceiling on
any such award was as set out in Section 29(4) in the following terms:- "An
order....... under sub section (2) shall not have the effect of awarding to
the survivor an amount which would exceed the amount to which the survivor
would have been entitled had the survivor been the spouse or civil partner
of the deceased." Counsel turned
then to consider the factors listed in Section 29(3), emphasising that in
construing these factors, Section 29, in so far as it conferred a right in
succession on a surviving co-habitant, was to be distinguished from
Section 28 of the Act which dealt with financial provision where
co-habitation ended otherwise than by death, i.e. voluntarily on the part
of both or one co-habitant. In
Section 28 issues such as economic advantage and the position of any
children arose. Counsel submitted
that Section 29(3) should be read in relation to what she described as the
"post-death scenario" which appeared to be posited by Section 29, and that
accordingly one could not look to the co-habitation itself in considering
the various factors listed in Section 29(3). In her submission, there was no
dependency test, no test in respect of economic advantage or disadvantage
and indeed no provision for the what she described as the "worthy"
beneficiary in Section 29. The
purpose, which she took from the pre-amble of the Act, of Section 29 was
simply to confer a right in succession on co-habitants, but to do so on a
discretionary basis (Section 29(2)).
- Turning to Section 29(3)(a), "the size
and nature of the deceased's net intestate estate", she noted that the net
value of the estate in terms of the Confirmation 6/7/2 of process, was £213,272.88 which falls below the threshold
for the application of inheritance tax.
There was a further relevant figure comprising expenses already
incurred as set out in the estimated charge and discharge dated 2 September 2008 at page (d) of production 6/8/6 in the
sum, including VAT, of £4,808.25.
These were incurred expenses of the administration of the estate
and excluded fees for the Court action.
The executry and Court fees figure should not be included, she
submitted in my view correctly as no adequate vouching in respect thereof
had been produced. The parties agreed that the net value of the estate as
at late September 2008 was £190,921.45.
Less the said proper expenses figure, the net intestate estate
which is the subject of claim and in terms of which the Pursuer sought
payment of a capital sum, comprised £186,113.20. In dealing with the expenses of this
litigation, the Pursuer's Counsel advanced the proposition that they do
not automatically have priority over legal prior rights having regard to Cameron v. MacIntyre's Executor (2)
2006 SLT 1088.
- Turning to Section 29(3)(B)
"any benefit received, or to be received, by the survivor - (i) on or
in consequence of, the deceased's death;
and (ii) from somewhere other than the deceased's net intestate
estate", Counsel referred to the lump sum from British Telecom and to the ongoing
pension, submitting in respect of the latter that the actual benefit
received by the Pursuer is the pension payable to him, and that the Court
should look at the gross per annum figure, increasing annually in
accordance with the retail price index.
She criticised the approach of the Defender's actuary, submitting
that Section 29 offered no basis for his "replacement cost" approach to
valuation. She observed that the
Pursuer cannot cash in the pension, nor can he transfer it to another
pension scheme; it ceases on his death and forms no part of his estate,
and no lump sum is payable on the death of the Pursuer as a result of the
pension to any other party. It was
accordingly, in Counsel's submission, a fiction to say that the Pursuer
benefited in the sum of £298,900.00.
The true "benefit" to the Pursuer was simply the monthly
income. There was no requirement,
it was submitted in terms of Section 29 to capitalise the value of that
monthly income. She invited the
Court to "take into account" the monthly income without capitalising its
value. In so far as this amounted
to an invitation to the Court to assess "apples and pears", her submission
was that the apples and pears could be kept separate but the Court could
and would still have regard to them.
- Turning to Section 29 (3),
(c), namely "the nature and extent of any other rights against, or claims
on, the deceased's net intestate estate", Counsel noted that no children
were involved in the present action.
She submitted that as the degree of relationship became more removed,
any competing claim to the carried less weight and that in this case the
claim of the half sibling was as stated by the Pursuer, i.e. "distant" or
"estranged". I have already given
my assessment of the Pursuer's evidence on this matter, of course, but was
interested to note that Counsel specifically advised at this point in her
submission that the word "estranged" was not insisted upon in so far as it
had appeared in the Pursuer's pleadings, as this had clearly not been
borne out by the evidence. Her
focus instead was on the degree of relationship. She also submitted that the number of
potential beneficiaries under this category was relevant, i.e. how many
siblings there were.
- Turning to Section 29(d) "any
other matter the Court considers appropriate", Counsel's submission was
that consideration of Section 25 matters was not appropriate under this
catch all clause, i.e. the period of co-habitation, once the fact of
co-habitation was established or admitted, the Court could not look to the
length of co-habitation. She noted
that there was no minimum period applicable for civil partners or spouses
in terms of the Succession (Scotland) Act 1964, as amended, and that in terms of Sections 25 and 29
of the 2006 Act, there was no minimum period of co-habitation specified
before the right of succession was conferred. Esto, this submission was unsound.
Counsel submitted that a relationship of extreme length or brevity may be relevant. In her submission the relationship here
comprising one of 2 years 8 months was not "very short" in so far as it
was not transient. Matters which
could potentially be considered as factors in terms of Section 29 (3)(d)
were matters affecting the estate or survivor after the death of the
intestate, Counsel submitted. It
was not appropriate to take into account testamentary intentions if the
deceased had not made a Will, Section 29 only applying when the deceased
died intestate. Dependence,
however, may be relevant in so far as it affected a survivor after death
if the survivor was homeless and destitute. Dependence during co-habitation, was, it
was submitted, not relevant, although on the facts it appeared that the
Pursuer was dependant on the deceased during their co-habitation in Scotland. The converse, it was
submitted, however, was not true, in respect of the issue of dependence,
for example, a survivor who was left with ample resources. The needs and resources of the
survivor were not relevant. Counsel submitted that receipt by the
Defender of the lump sum being half of the
death in service payment from British Telecom would fit into
Section 29(3) (d), which point was conceded by the Defender's agent. Payment of the similar lump sum to the
Pursuer, and the pension, would not fit into (d) however, as these applied
under Section 29(3)b). Counsel
submitted esto she was wrong about the relevance of economic advantage or
disadvantage, that in broad terms there was no evidence that the Pursuer had
derived significant economic advantage.
Any evidence about the increased equity of the Pursuer, she said,
was funded from his savings and Piper Alpha funds. I observe at this point that no adequate
evidence or vouching was led for the Pursuer on this and accordingly I
cannot accept that subsidiary submission.
Counsel properly conceded, however, that the lump sum and pension
paid and payable to the Pursuer did give him an advantage.
- Solicitor for the Defender
disputed Counsel's construction of Section 29(3). He pointed out that, on the Pursuer's submissions and construction of
Section 29, the Pursuer was entitled to the same amount as any spouse or
civil partner would be on death. He
noted that the statute did not provide in terms that a co-habitant was
entitled to the same amount as a spouse or civil partner. The existence of the ceiling set in
Section 29(4) meant necessarily that the Court could and should look at
the circumstances of the co-habitants.
This fitted well with the discretionary nature of the claim and the
use of the word "may" in the pre-amble to Section 29(2). He submitted that if any cohabitant was
intended by Parliament to secure 100% of the net intestate estate, the statute
would surely have so provided, i.e. if the cohabitant was to be in terms
of his right of succession in the shoes of a spouse or civil partner, the
Statute would, and could easily have, so stated but did not do so.
- Addressing the question of valuing
the pension, the Defender's Solicitor submitted that a common denominator
approach was indeed appropriate, i.e . all fruits required to be turned
into "apples", and that this was a common task implemented by Courts
daily. The appropriate valuation
was therefore that set by actuary.
The Court had heard no valid competing approach and could not close
its eyes to the significant figure involved.
- Standing the benefits already
received by the Pursuer from other sources (Section 29(3)(b) (the lump sum
and the pension), and in particular the magnitude thereof, the Defender's
solicitor submitted that no order in favour of the Pursuer should be made. He invited the Court to aggregate these
sums which would demonstrate that the Pursuer had, under the head of
Section 29(3)(b), received (or will receive)benefits already in a sum just
in excess of £420,000.00. This
demonstrated that the Pursuer had amply been provided for and there was
accordingly no need for any additional provision in terms of Section 29,
and that accordingly, although the preliminary hurdles to the
establishment of a claim by the Pursuer had been met (Section 25 and
Section 29(1)), standing the application and sound consideration of
Section 29(2), (3) and (4), that claim should properly be valued at
nil. Accordingly, while the
Defender accepted that the Pursuer qualified for a claim, in the result no
award should be made standing the sums already received.
- The Defender's solicitor further
took issue with Counsel for the Pursuer in respect of the relevance of the
duration of the relationship which he submitted must fit into Section
29(3)(d). While there was no
minimum period to qualify for the succession right as a co-habitant in
terms of Section 29, the duration here must be relevant, particularly when
having regard to the magnitude of the benefits received by the Pursuer as
a result thereof.
- While it is clear that the
deceased's net intestate estate did not include the death benefit lump sum
which the BT pension trustees effectively split between the Pursuer and
the Defender in the exercise of their discretion, or indeed the annual
pension which will continue to be paid out by BT pension trustees to the
Pursuer, accepting as I do the valuation proffered to the Court by Mr
Buchanan and reflected in the report 6/8 of process, these benefits, which
require to be factored into the Courts' exercise of its discretion in
terms of Section 29(3)(b), are on such a scale in themselves as to
militate against the making of any award in favour of the Pursuer in terms
of Section 29 on the basis of either (or a combination of both) craves of
the Pursuer before the Court. I am
fortified in this view further by the approach
I have taken to the length of the relationship
between the Pursuer and the deceased which I considered appropriate
in terms of Section 29(3)(d). The
duration of the relationship reflected but a small fraction of the adult
life of the deceased. To place this
factor in its context within uncontested evidence, the deceased enjoyed a
relationship of some 15 years with Mr Anbery which led to certain steps of
testamentary intention being taken by the deceased in terms of a will and
within the BT pension scheme papers.
No such steps had been taken in the course of the relationship of
the deceased and the Pursuer prior to the death of the deceased. The parties shared no ownership in heritable
property, mortgage, or life cover policies. They did not even have a joint account,
and on the evidence of the Pursuer himself, they "never discussed
it". In seeking to exercise my
discretion in a way that does justice between the parties, I have sought
to read into Section 29(3)(d) the factor of the duration of the
relationship within this overall context, and in so far as these financial
matters are germane to any intentions of the deceased on death, in my view
they fit comfortably within the (post-death scenario) schema envisaged by
the Pursuer's own counsel. I
myself, however, would go further than the said schema advanced by the
Pursuer's counsel and in so far as I have sought to read in to the factor
of duration the historical context of the deceased's prior lengthy
relationship with Mr Anbery and steps taken by him within that,
contrasting as they do with the complete lack of any such steps taken
within the much shorter relationship of the deceased and the Pursuer, I
consider that in the exercise of my discretion in terms of Section 29(2),
the Court cannot close its eyes to such factors within the contextual
hinterland in which the claim at the instance of the Pursuer presents
itself. In finding as I do in this
claim against the Pursuer, I am not seeking to categorise him as an
"unworthy" beneficiary, a course counselled against by the Pursuer's own
counsel, for I see no place in the legislation for such an approach within
the exercise of my discretion. My
view of the Pursuer, however, bears directly upon my assessment of his
credibility with regard to (a) the inaccurate picture he sought to build
up of the Defender as an "estranged" half sister and (b) the related but
distinguishable issue of the significant and in my view, material
discrepancies between the Pursuer's parole evidence and his position in
his email of 12th July 2007 about putative financial
arrangements on the death of the deceased
- In advancing her argument
with regard to the pension valuation issue, counsel for the Pursuer did
not advance a satisfactory alternative way of valuing this element of the
claim. Her submission was, broadly
put, that the Court could simply "take into account" the ongoing pension
payments, but that these could not be translated into a globalised figure
which would allow comparison with the other figures available to the Court,
and in so far as all the other financial elements in the picture were "apples",
her submission was that the Court would simply have to make do with an
assessment of the ongoing pension payments as "pears" "to be taken into
account". She offered no
alternative expert evidence on her client's behalf or any authorities to
support her position, and standing the coherent picture presented by Mr
Buchanan in his oral evidence and in his report, I was satisfied that in
order to exercise my discretion fairly and take the payments into account,
as I require to do as a "benefit" in terms of Section 29(3)(b), the only
appropriate way of doing so would be to adopt Mr Buchanan's approach
whereby he estimated what would require to be paid to an insurance company
to secure an annuity to replicate the annual pension income vouched in
process and agreed between the parties.
I observe in passing that Mr Buchanan noted that Ogden Tables
figures on mortality would give a "considerably higher figure". In order to value the pension as a
material asset and take it into account as envisaged by the statute, I saw
no practical and realistic alternative to following Mr Buchanan's
approach, nor was any acceptable coherent alternative suggested on behalf
of the Pursuer.
- Counsel for the Pursuer
invited me to reserve questions of expenses. The Defender's solicitor, however,
expressed the view that as parties understood this to be the first decided
litigation in this area, the fair approach in dealing with expenses would
be to award none due to or by. Standing
my decision and the order pronounced in the accompanying interlocutor, I
have acceded to the Defender's solicitor's motion. Motions for sanction of Counsel and for
Mr Buchanan as an expert have been granted unopposed.