Adepoju v Akinola [2016] EWHC 3160 (Ch)

Analysis

This is a claim relating to the estate of Medinat Bola Adepoju (the deceased) who died intestate in July 2015. The claimant is the daughter of the deceased and the defendant claimed to be a widower of the deceased.

While this was technically a probate claim, the issue between the parties in the short term was who should administer the estate. Each party feared that the other would favour themselves when administering the estate. The issue as to administration itself turned on whether the defendant and the deceased were validly married. The defendant argued that since he is the surviving spouse of the deceased, he would be entitled in priority to the claimant to take out of a grant of letters of administration in the estate of the deceased. He argued in the alternative that he should be granted letters of administration in any event since he claimed he had a child with the deceased, was the partner of the deceased and claimed a beneficial interest in properties owned by the deceased.

The defendant was previously married to another woman, Adepeji Balogun Akinola (Mrs Akinola), in London in 1983, which raised the question of whether the later marriage was valid. The defendant claimed he had been divorced from Mrs Akinola in Nigeria in 2003. As to the later marriage, there was a certainly a family gathering in April 2006 at which the deceased, the claimant and the defendant were all present but it was disputed between the parties whether this amounted to a marriage under Yoruba native law and custom in Nigeria in April 2006.

Held

1. 1) Section 11(d) of the Matrimonial Causes Act 1973 provides that where after 31 July 1971 a ‘polygamous marriage’ is entered into outside England and Wales, and either party is at that time domiciled in England and Wales, the polygamous marriage is void. For this purpose a ‘polygamous marriage’ includes one where one party to it is a party to a prior subsisting marriage.
2. 2) Both the deceased and the defendant had acquired a domicile of choice in England and Wales at the time of the 2006 ceremony. Both had the intention to spend their lives in England and Wales on a permanent basis.
3. 3) There was never a divorce between Mrs Akinola and the defendant and so by virtue of s11(d) Matrimonial Causes Act 1973 there could not have been a valid marriage between the defendant and the deceased in 2006. Therefore the defendant was not entitled to a share in the deceased’s estate on intestacy, nor to take a grant of letters of administration on the basis he was the deceased’s widower under r22 of the Non-Contentious Probate Rules 1987.
4. 4) There had been a marriage between the deceased and the defendant in 2006 as a matter of Yoruba law and custom. The defendant’s witness evidence was to be preferred to the claimant, and the photographic evidence of the occasion in question corroborated his witness evidence, including the matching outfits of the deceased and the defendant.
5. 5) Given the level of hostility between the claimant and the defendant, the claimant should be passed over under s116(1) Senior Courts Act 1981 and an appropriate person be appointed instead.

JUDGMENT MASTER MATTHEWS: Introduction [1] This is my judgment on a claim brought by the claimant, the daughter of the late Medinat Bola Adepoju (the deceased), who died intestate in July 2015, against the defendant, who claims to be the widower of the deceased. In form this is a probate claim. The claimant applied for …

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