Swetenham v Walkley & anr 2CL10307

Analysis

The claimant brought a claim for reasonable financial provision under the Inheritance Provision for Family & Dependents Act 1975, against the estate of Alexander Graham Bryce (the deceased), on the basis that she had been living in the same household as the deceased, as his wife, in accordance with s1(A) of the Act. Otherwise, as the deceased had died intestate, his c£600,000 estate fell to be distributed to his numerous intestacy beneficiaries, a class to which the claimant, who was never married to the deceased, did not belong.

The first issue before the court was whether the claimant fulfilled the two limbs of s1(A) of the Act, by proving that she was living in the same household, and as the wife of the deceased, for the whole period of two years ending immediately before the date of death. She argued that she shared common interests with the deceased. They had spent most of their days together. They would go out together on social occasions, and he kept his own bedroom at her house. He kept his clothes there, he bathed there, and she cooked for him there. The perception of others was that the claimant and the deceased were partners. Moreover, it was her belief that they would eventually marry. She relied upon the evidence of neighbours who had seen the deceased’s vehicle outside the claimant’s house daily. According to them, he was a ‘permanent fixture’ who spent most days in the company of the claimant at her house. The deceased always paid when they went out together, he took her out in his car, and he had bought a dog for her, which he kept at his property.

The defendants contended that while the claimant and deceased were undoubtedly close and mutually supportive friends, they did not live in the same household, nor did they live as husband and wife. As such, the claimant had no standing to bring the claim, and the estate was to be distributed in accordance with the law of intestacy. They emphasised the fact that the deceased and the claimant did not live in the same house, that the deceased had his own property elsewhere where he spent most nights. He was secretive about his financial affairs – he had a bought a property and had retired from work without informing her. On the whole, their financial affairs were kept separate. The claimant lived off her pension, as well as the lump sum she received upon her divorce, and the deceased had never given her any money. The defendants further argued that the deceased and the claimant were not living as husband or wife during the relevant period. They relied upon the apparent absence of any sexual relations between them, the fact that the deceased had described the claimant as a ‘friend’ when putting her name down as next of kin on the hospital form, and the fact that they led very individual lives. Their relationship was one of friendship, companionship, but no more.

The claimant further argued that she was entitled to reasonable financial provision out of the deceased’s estate. She was disabled and had financial difficulties. The deceased had given the claimant the impression that she would inherit under his estate. He had told her that he had made a will and that she would be a ‘wealthy woman’ when he was gone. He had given her emotional and practical support. After his death she needed that support from elsewhere, which could only be provided on a financial basis.

Held:

1. 1) Husbands and wives live their married lives in multifarious ways. In order to find that two people lived in a household, as husband and wife, it was necessary for there to be a tie of mutual society, mutual protection and support between them, both privately between themselves and publicly for others to witness. It is the internal nature of the relationship, as well as its external appearance, which is important.
2. 2) The way they acted towards each other, and the public face they displayed, demonstrated that the claimant and the deceased were operating as one household out of the property of the claimant. The fact that the deceased had a property of his own was no barrier to their living in the same household. He was not living a life elsewhere.
3. 3) The deceased had spent most of his days and many of his nights at the claimant’s property. It was where he stored his clothes, spent his time, had his washing and ironing done and had his meals. His own property was in a dilapidated state at the time of his death.
4. 4) The deceased and the claimant planned to spend their future together, namely at the deceased’s property once it had finally been restored.
5. 5) While they did not share a common pot of finances, there was an informality to the arrangements financially. The deceased paid for any of the outgoings when they were outside of the house and in that sense there was a communal pot.
6. 6) The fact that there may or may not have been a sexual relationship between them was not determinative of whether the deceased and the claimant lived together as man and wife. The question was whether they had a bond, a mutuality of support and understanding that exists and builds between them.
7. 7) On that test, they were living together as husband and wife. No one factor was determinative, but the combination of all the factors. However, the thirty year length of the relationship was important, as was the exclusivity of that relationship also.
8. 8) The obligations and support they provided one another was beyond that of friendship. They cared for each other when the other was ill – he had, for example, taken her to 41 doctors’ appointments over the course of 12 months. They were invited out as a couple, and people mistook them for husband and wife. Significantly, the deceased was seen by, and accepted by, the claimant’s children as her partner. The perception, therefore, looking in from the outside, was that they were partners, living as man and wife, and not just close friends.
9. 9) As such, the claimant qualified as an eligible applicant under s1(A) of the Act. The law of intestacy accorded her no provision, and therefore it was plainly a case which required some level of award to be made by the court.
10. 10) Subject to the evidence of the single joint expert, the claimant needed an immediate needs care plan. An immediate care plan would require a total premium of £257,382.64. Subject to the claimant’s existing capital of £128,000, there was a shortfall of some £129,000.
11. 11) With a capital cushion of £3,500 per annum, capitalised to a lump sum of £33,250, plus an additional sum for future contingencies, the claimant was entitled to a lump sum of £201,219 from the estate.
12. 12) The defendants were liable for the claimant’s costs. As the claimant had beaten her own Part 36 offer, costs flowing from the date of that offer would be payable on the indemnity basis.

JUDGMENT JUDGE WALDEN-SMITH: (Transcript prepared without access to documentation re checking appearances, accuracy of quotes; spellings, etc) [1] This is a claim brought by Beryl Janeete Swetenham, a protected party, by her litigation friend, her son, Simon Randall Swetenham. The claim is brought pursuant to the provisions of ss1 and 2 of the Inheritance Provision …

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