Analysis
The deceased died intestate in 2020 with an estate worth around £120,000. He had married the claimant in January 1993, and they had a daughter, the defendant, in November 1993. They had an unhappy marriage and little family life, although they all continued to live together. In 2014, the deceased transferred the matrimonial home from his sole name to the joint names of him and the defendant as beneficial joint tenants, such that on his death his share of the property passed to the defendant. The property was worth around £450,000. In 2017, the claimant brought proceedings against the deceased and the defendant to prevent them from coming near the matrimonial home, which were compromised, and then they all continued to live together. The claimant and the deceased divorced and the decree absolute was pronounced shortly before the deceased died without financial remedies proceedings concluding, and within which the claimant had applied under s37 Matrimonial Causes Act 1973 to set aside the 2014 transfer. The claimant had been ordered to move from the matrimonial property in 2022. The claimant sought relief under s10 of the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision on the basis that the 2014 transfer was intended to defeat her application for financial provision, and the matrimonial home should be treated as part of the estate.
Held:
The conditions were met such that the claimant could be treated as if the divorce had not been made, pursuant to s14 of the Inheritance (Provision for Family and Dependants) Act 1975. The appropriate test of reasonable financial provision was such reasonable financial provision as would be reasonable in all of the circumstances for her to receive, whether or not provision was required for maintenance under s1(2)(a).
The transfer was not for full valuable consideration and within six years of death such that ss10(2)(a) and 10(2)(b) were fulfilled. However, on the evidence, the claimant had not established that in making the transfer in 2014 it was a material intention of the deceased to defeat the claim. There was no evidence that any thought was given to succession planning or inheritance. The evidence in the divorce proceedings was that the deceased wanted to give the defendant a right of occupation but not necessarily to the exclusion of the claimant.
The court would not exercise its discretion under s9 as the intention of the transfer was to benefit the defendant rather than to deprive the claimant. The exercise of discretion might lead to the sale of the property against the defendant’s wishes and the loss of her home. The claimant had been living in Sri Lanka for 18 months, and the court did not accept she intended to return to England. The claimant had downplayed the extent of her assets in Sri Lanka. It would not be just to make an order.
Considering all of the factors under s3, the estate had not failed to make reasonable financial provision. It was not unreasonable for the claimant to receive nothing from the estate. That was tested against the ‘divorce cross-check’ in s3(2). It was consistent with the claimant receiving half of the pot of their assets in the divorce proceedings, which was what she said was informally agreed.
JUDGMENT HHJ MONTY KC: Introduction [1] On 29 February 2020, Mr Kanapathipillai Nandakopan died intestate. He had married the Claimant on 28 January 1993, and they had one child, a daughter, who is the Defendant in this claim. She was born on 13 November 1993. Sad to say, the marriage was not a happy one, …Continue reading "Nandakopan v Nandakopan [2024] WTLR 217"