Kaur v Bolina & anr [2022] WTLR 235

Analysis

The claimant and the deceased were married in 2012. In 2014, the deceased petitioned for divorce and also executed a will by which he bequeathed his entire estate to his children, the defendants, leaving express wishes that the claimant should not benefit from his estate. However, he and the claimant were then reconciled and the petition withdrawn. In 2018, the deceased again petitioned for divorce, and in February 2019 he and the claimant separated with the claimant leaving the deceased’s property in Edgar Road, London, but the deceased died on 30 September 2019 before any decree. The facts concerning the marriage were highly contentious; there were allegations of physical and psychological abuse on both sides, and there had been proceedings under the Family Law Act 1996.

The defendants obtained probate of the will in December 2019. The Edgar Road property comprised nearly the entire value of the estate. In May 2020, the claimant issued a caveat against the estate, but was not informed of the existing grant. In the same month, she wrote to the defendants intimating a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). There was limited pre-action correspondence, receipt of which was denied on both sides. The defendants distributed the estate to themselves in August 2020. The claim was issued on 19 November 2020, five months out of time.

The claimant argued that failure to make any provision for a spouse could never amount to reasonable financial provision, and that the commencement of pre-action correspondence within the time limit and the claimant’s ignorance of the grant of probate justified the delay. The defendants argued that the claimant had not made out an arguable case for reasonable financial provision; since the Edgar Road property was non-matrimonial property, it would not be taken into consideration in the hypothetical divorce envisaged by s3(2) of the 1975 Act.

The issue to be determined was: should the court give permission for the claim to be brought outside the six-month time limit?

Held:

1. 1) The Edgar Road property had been acquired by the deceased’s family some 50 years before his marriage to the claimant, and could properly be described as a non-matrimonial asset. When considering whether to take account of pre-acquired or non-matrimonial assets the court would apply the following principles (see para [31]):
   1. a) The nature and value of the property, and the time when and circumstances in which the property was acquired, were among the relevant matters to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant’s financial needs cannot be met without recourse to the property in question.
   2. b) The sharing principle applies to all the parties’ property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality.
   3. c) The proper approach is to apply the sharing principle to the matrimonial property and then to ask whether the result of so doing represents an appropriate overall disposal, or whether the principles of need or compensation require additional adjustment, even from non-matrimonial property.
   4. d) The longer the marriage, the easier it is to say that by virtue of the mingling of that property with the product of the parties’ marital endeavours, the supplier of non-marital property has, in effect, agreed to share it with the other spouse.
   5. e) Treatment of non-matrimonial property is highly fact-specific and discretionary.
2. 2) This was not a short marriage, and although the fact that the Edgar Road property was non-matrimonial property was highly significant, the court would nevertheless have regard to it in determining the claimant’s relief.
3. 3) The principles governing an application for permission to pursue a claim under the 1975 Act out of time were set out in Cowan v Foreman [2019] (summarised at para [18]). Applying those principles, permission would be given to pursue the claim out of time. The claim was signalled in correspondence within the relevant period, and was issued reasonably promptly once the claimant discovered that probate had been granted. The claimant had made out an arguable case for a failure to make reasonable provision.

JUDGMENT COBB J: [1] A preliminary issue has arisen within proceedings brought under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’). The Claimant, Mrs Kaur, seeks an order that the period prescribed by s4 of the 1975 Act for the making of an application for an order under s2 (ibid.) (ie, …

Continue reading "Kaur v Bolina & anr [2022] WTLR 235"