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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 15^th 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

1. 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.
2. 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.
3. 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.
4. 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 15^th May 2007). Following, however, receipt by the Pursuer of a BT pension scheme letter of 2^nd 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 15^th May 2007 to "estranged" in the Pursuer's own email of 12^th 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 15^th 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 12^th 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.
5. 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.
6. 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.
7. 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)).
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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 12^th July 2007 about putative financial arrangements on the death of the deceased
17. 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.
18. 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.