IPFD 1975 – cohabitants – Cattle v Evans [2011] EWHC 945

 In Probate

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A recent case considers whether an award should be made for the surviving partner of an intestate where they had lived together for five years before his death and had an 18 year relationship. It is a claim which had to be balanced between the surviving partner and the deceased’s two adult children who inherited on the deceased’s intestacy.

The facts

David John Evans died intestate on 23 March 2009. He was only 59 years of age. He had two sons – Paul & Gareth. He met the claimant, Christina Cattle, in June 1990 at the time he was going through a divorce and lived in rented accommodation. She worked for the Nationwide Building Society and owned a four bedroomed property in which she lived with her two young children, Antony and Victoria. For 12 months the deceased moved with Gareth into the claimant’s property and Gareth paid her a rent. Living together did not work out and the deceased bought a modest property with the aid of a substantial mortgage for him and Gareth to live in.

The relationship continued over the next few years and the deceased did propose to the claimant in 1993 but despite an engagement they never married. There was even a break between 1997 and 1999 when the deceased resumed an earlier relationship.

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The two of them kept their finances separate and until 2004 they each owned separate properties in their respective names, although the claimant moved house several times.

The deceased had moved jobs on two occasions and was then made redundant in 2002. He had always wanted to live in Wales and in 2003 the couple looked at buying a Bed & Breakfast property in Wales. At that time the purchase did not materialise and so in 2004 they went to Spain to buy a holiday home. They found a property and the deceased persuaded the claimant that she should retire and they should live permanently in Spain. Somewhat reluctantly she agreed. Both of them sold their respective properties but David’s sold first and its proceeds were used to purchase the Spanish property, which was put in their joint names.

The property needed considerable renovation and so when the claimant’s property sold she used a similar sum to fund the repair and improvement work. The balance purchased a property in Wellingborough for her children to live in. Effectively both the deceased and the claimant had contributed half the costs of purchase and renovation of the Spanish property.

Just before they moved to Spain the deceased inherited a considerable sum of money on the death of his mother and he used these funds over the next four to five years to cover his living expenses.

The claimant’s son Antony was taken ill with leukaemia in 2006 and she provided financial assistance by paying off a loan for him and then mortgaging the Wellingborough property so that he could buy a property of his own.

By 2007 the deceased indicated he wanted to return to the UK and in particular move to Wales. They looked at properties and decided to buy 2 Clos Erw Werdd, Cross Hands, Llanelli (“the Cross Hands” property). They sold the Spanish property and shortly before they were due to exchange on the Cross Hands property they were told there was a drainage problem which delayed their purchase.

When they instructed the solicitor in the purchase of the Cross Hands property they had instructed him to purchase it in the sole name of the deceased because the claimant already owned a UK property and they thought it would be a tax advantage to own the properties separately, even though the proposal was to use the joint funds from the sale in Spain to finance the purchase. They also considered making Wills but the firm’s attendance note merely states this without including any possible terms for these Wills.

As a result of having to leave Spain on the sale of their property and being delayed in the purchase of their new Welsh property they each went to live with their own families – the deceased with his sister and the claimant with her son Antony. At this time the deceased complained of being unwell and had tests which confirmed he had lung cancer, naturally making him depressed. The deceased and the claimant argued and he told his sister that they had decided to go their separate ways.

In the event, the owners of the Cross Hands property offered to let them live in the property for a single payment of £1,000 whilst the drainage problems were resolved, which offer they decided to accept and they moved to Wales.

The sale proceeds from the Spanish property were received and divided 50:50 between them.

By the end of July 2008 it became apparent that the deceased’s cancer was terminal. Despite this he purchased the Cross Hands property in November 2008 using only his funds and in his sole name. He used a different firm of solicitors this time. However, it was not until 27 February 2009 that instructions were given to that firm to make Wills for the deceased and the claimant. These instructions advised that the new property would pass to the claimant on the deceased’s death and the residue of his estate would go to his sons. In the absence of draft Wills by early March the claimant chased the solicitor to produce the Will since the deceased’s health was deteriorating and sadly the Wills were posted to them on 20 March 2009 and the deceased died, without finalising his, on 21 March 2009.

At the deceased’s death he owned the Cross Hands property, worth about £150,000, and cash and chattels, worth about £70,000, which included a pension worth about £35,000.

The claim

Christina Cattle brought two claims against the estate: Firstly, she argued that she had an interest under constructive trust in the Cross Hands property registered in the deceased’s sole name. Secondly, she claimed that she had an entitlement under the Inheritance (Provision for Family & Dependents) Act 1975 [IPFD 1975] as the intestacy rules made insufficient financial provision for her as a cohabitant.

The decision

The Judge dismissed her claim for a constructive trust over the Cross Hands property because of the separation of the parties’ finances throughout and the change in the arrangements when the property was eventually purchased using only the deceased’s funds, not joint funds.

He preferred the evidence of the deceased’s sons and sister as to the state of the relationship between the parties rather than the claimant’s and felt their failure to marry was indicative that all was not as secure as the claimant made out. The claimant also used her money as she pleased and she was not frank with the court as to the extent and use of this nor did she voluntarily disclose the amounts of money she had given to Antony to ‘hide’ it from the deceased’s family.

As to the claim under the IPFD 1975, the claimant and the deceased did live in the same household for the whole of the two year period immediately before the deceased’s death as husband & wife and so she was entitled to make a claim. The Judge reviewed the matters to which he had to have regard under s.3 and noted that whilst it was not reasonable to provide a house of the same size and value as the Cross Hands property there was a need to provide a roof over the claimant’s head since the modest rental income from the property she owned was about the only income she had. There was the prospect of a small pension from her employment and the repayment of some of the monies she ‘lent’ to her son but each would not be available for a few years. She had tried to find a job but at 60 was not successful.

He decided that a suitable property nearer her children in Northampton could be purchased for about £110,000 and this should be purchased upon trust for her to live in for life with the remainder in favour of the deceased’s sons, Paul and Gareth. The claimant had to insure the property. The balance of the estate passed to Paul and Gareth in equal shares.

Practice points

  • The lack of a Will when parties live apparently together and yet have such separate interests always should put a solicitor on notice that maybe they cannot talk openly about the state of their relationship or who should benefit on their death. However, when terminal illness intervenes it is essential not to delay and to be clear who is providing the instructions.
  • The Judge clearly did not find the claimant a reliable witness but acknowledged that she had a perfectly acceptable claim under the IPFD and did need a roof over her head. Given the young age at which the deceased died it is highly likely that she may be able to live in the property funded by the deceased’s estate for upwards of 20 years, not something which will delight the deceased’s sons – but then none of us should assume we are entitled to inherit our parents’ estates.
  • The claimant would surely approve of the Law Commission’s proposals that the intestacy rules should be amended to include cohabitants. If we were administering this estate against those proposals, once we had established the relevant number of years of cohabitation then the whole or part of the estate would pass by default to the cohabitant depending on which Law Commission proposal, if any, finds favour. No doubt the sons would then try to claim under the IPFD instead of the claimant!
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