Analysis
The claimant (Arlene) applied for reasonable financial provision from the estate of Alonzo Legister (the deceased) as someone maintained by the deceased immediately before his death under s1(1)(e) of the Inheritance (Provision for Family and Dependants) 1975 (the 1975 Act). The claim was contested by the defendant, who was the administrator of the estate and one of the residuary beneficiaries on Alonzo’s intestacy. It was Arlene’s case that she was cohabiting with the deceased prior to his death. However, it was accepted that even on her case she was not doing so during the whole of the two year period ending with his death.
The estate consisted mainly of a property (‘the property’) said to be worth between £275,000 and £280,000.
The deceased had six siblings at the time of his death: the defendant, who lived with the deceased and five others who lived abroad. One of these had died by the time of the hearing. The residuary beneficiaries’ circumstances were not said to be in issue with regard to the claim. Arlene was 41 at the hearing. She had come to England from Jamaica in 2002 and worked as a carer. Her caring qualifications had, on her evidence, been partially funded by the deceased. Her case was that she and the deceased lived as man and wife at the property between 2004 and about 2007. In 2008 she married a Mr Gordon but that relationship floundered and she returned to the property, resuming her relationship with the deceased in Autumn 2010. Her relationship was said to continue until the death of the deceased in 2012. She was not divorced from Mr Gordon but claimed not to get any support from him. While that relationship had subsisted she and Mr Gordon had cohabited at a property owned by his mother. Following the deceased’s death she had gone to Jamaica for his burial and then returned to live in the property. The defendant had obtained possession against her on 30 April 2012.
Arlene was now living in a rented flat in Brockley. Her income was said to be approximately £1,000 per month. £550 of her income went on rent; £200 she remitted to Jamaica for the support of her two children. The master found that her income was very fully committed. Arlene also had a costs liability of £5,000 in respect of the possession proceedings, which she was discharging at £30 per week. Her current litigation was privately funded with a costs budget of £29,000 and Arlene had already paid £4,000 on account of such costs.
The defendant submitted that there never had been an intimate relationship between Arlene and the deceased; that she occupied the property as a lodger at all times. It was common ground no rent was paid and also that Arlene did various cooking and cleaning. The defendant submitted that Arlene paid for her accommodation by such cooking and cleaning. He submitted that the deceased, he, and Arlene shared various utility bills and the deceased paid the mortgage. His evidence was that when Arlene married Mr Gordon she did not move out and things went on as before. His written evidence had differed on this point. The defendant was adamant that Arlene and the deceased did not share a bedroom.
The master noted that it was important to bear in mind that this was a case founded on dependency rather than cohabitation. However, this did not mean that cohabitation was unimportant. Several authorities recognised that dependency required an assumption of responsibility by the deceased. Cohabitation may well be material to the court in determining whether and to what extent responsibility has been assumed. As a result, cohabitation or lack of it is also relevant to whether reasonable provision has been made and if not, should be made for a dependant. Such a relationship will also have a bearing on the moral obligation if any owed to the applicant under s3(4) of the 1975 Act.
The master further noted the exhaustive definition of maintenance under s1(3) of the 1975 Act and noted that the court would look at the applicant’s needs as at death but would consider any settled arrangements subsisting in respect of those needs, ignoring any temporary disruption owing to terminal ill health. The master also noted that such maintenance had to be provided otherwise than for full valuable consideration.
It was submitted by the defendant that following the introduction of a cohabitee’s right to claim provision by amendment of the 1975 Act, the court should depart from its previous approach to the assessment of consideration in the case of a cohabiting dependant, which took effect by applying a domestic value to their services, rather than a commercial one. It was submitted that the change was appropriate as a cohabitant within the 1975 Act now had a separate cause of action and therefore did not require the generosity of approach previously employed in dependants’ cases.
Held:
- 1) The deceased was certainly providing Arlene with accommodation in his home from 2004 (subject to the gap created by Arlene’s marriage to Mr Gordon), without any payment by her other than her cooking and cleaning. There was no gap before the deceased’s death suggested and even if there were such a gap would not have disturbed the settled arrangements.
- 2) The master was unpersuaded by the submission that the commercial assessment of valuable consideration should apply to dependants. The current test met the needs of the statute. Parliament had taken no steps to modify the test and some cohabitee’s claims, of which the current claim was one, would continue to fall outside the new statutory provision.
- 3) Arlene had not been a cohabitee with the deceased. It could not be said that she had been living with the deceased as man and wife. However, they did have a close relationship. The ‘work’ around the house that she did had been accurately stated. It was likely that they had had a sexual relationship at one time. The precise characterisation of the relationship was hard to determine. However, it was clear that Arlene was more than a mere lodger.
- 4) Arlene’s housing need was met by the deceased. Arlene did not give full valuable consideration for that accommodation. Neither on the domestic nor commercial approach to assessment was it likely that full consideration was provided. As a result, Arlene was being maintained by the deceased since 2004, subject to a possible gap between 2008 and 2010.
- 5) In such maintenance the deceased made some assumption of responsibility for the maintenance of Arlene. This was demonstrated by Arlene’s position in the household and the provision of free or cheap accommodation. It was not necessary to show that such responsibility was assumed for the period following the deceased’s death. In the circumstances Arlene had the right to apply for provision.
- 6) On consideration of the factors in s3 of the 1975 Act, reasonable provision had not been made for Arlene’s maintenance. The deceased had assumed a moral obligation to Arlene to make sure that she was looked after to an appropriate extent following his death. In these circumstances the appropriate extent would be to ensure that she could resettle herself in suitable accommodation after the deceased’s death. On that basis reasonable provision had not been made.
- 7) There was nothing in the circumstances as they subsisted at the date of the hearing to lead to any different conclusion.
- 8) The reasonable provision that should have been made could be determined the yardstick of Arlene’s current rent. £550 per month was £6,600 per annum. The provision of this sum for a reasonable period plus a further modest amount to meet the additional expenses concomitant with finding a new home would be reasonable. Given the time that Arlene was part of the deceased’s household the proper allowance would be two years’ rent. On that footing and taking into account the additional allowance for extra expenses the sum ordered would be £16,500 out of the net estate.
Continue reading "Gordon v Legister [2014] EWHC 2041 (Ch)"