Gathering facts and evidence in IPFD cohabitant claims

 In Comment

Disclaimer: LawSkills provides training for the legal industry and does not provide legal advice to members of the public. For help or guidance please seek the services of a qualified practitioner.

IPFD 1975 – claim by cohabitant – Swetenham v Walkley & Bryce [2014] WTLR 845

Case Summary from LawSkills | Private Client specialist trainersBeryl Swetenham brought a claim against Alexander Bryce’s estate under the Inheritance (Provision for Family & Dependents) Act 1975 (IPFD 1975) on the basis that she and Alex lived together as husband and wife in the same household for at least the last two years of his life. They had in fact been partners for 30 years when he died but they did not apparently have sexual relations; Alex retained a separate property although he spent every day at Beryl’s house and they never shared their finances in a formal way. Could you say that Beryl was an eligible applicant under the IPFD 1975?

The facts

Alex Bryce died intestate and single on 12 July 2010. A Grant was obtained by Richard Walkley on 20 April 2011 after no Will could be found for him despite Mr Bryce suggesting to his partner of 30 years, Beryl Swetenham, that he had made a Will.

Beryl had been married and was divorced. She had three children: Simon, Louise and Caroline. She was aged 80 at the time of the hearing and suffered from disability. Alex, by contrast, had never married, was an only child and never had any children of his own. He was approximately two years older than Beryl.

Simon brought the claim for Beryl against Alex’s estate as her litigation friend on the basis that Beryl was an eligible applicant under s.1 (1)(ba) IPFD 1975 and that she and Alex had lived together as husband and wife in accordance with s.1 (1A) IPFD 1975.

FREE monthly newsletter

Wills | Probate | Trusts | Tax  | Elderly & Vulnerable Client

  • Relevant learning and development opportunities
  • News, articles and LawSkills’ services
  • Communications which help you find appropriate training in your area

Dr Ian Bryce was one of approximately 40 beneficiaries of Alex’s intestate estate and argued against Beryl being an eligible applicant under IPFD 1975. He acknowledged that Beryl and Alex were close and mutually supportive friends but they were not living in the same household as husband and wife. He and his brother had not seen Alex since they were children.

Apparently, Alex’s mother had kept him and her husband in a tight knit unit and they had little or no contact with their wider family. His parents died when Alex was fifty. He worked as an accountant for British Gas. He was introduced to Beryl shortly after he lost his parents by a mutual friend. Beryl was recently divorced. They became good friends sharing each evening and weekend together. After a while he started staying overnight at Beryl’s house although he would often go back to his own property to sleep. He had a room at Beryl’s property and she did all the housekeeping. They went out together on social occasions and she would always look after him when he was ill.

Alex was a little secretive about his finances. He did not tell Beryl when he retired nor that he had bought a house in Tarporley which needed renovation. However, both became clear later as he spent every day with her after retirement, apart from when she spent time with her friends, and he put his furniture into store as the new property needed attention and it was never finished to a degree that it could be lived in. Beryl lived off a pension having initially lived off a lump sum on her divorce. Alex never gave her money but he paid for meals and other things when they went out. When Beryl developed multiple sclerosis Alex drove her everywhere and looked after her. Following his death she was unable to manage, was hospitalised and thereafter discharged to a care home. The reason for Simon bringing the case was to enable a care plan to be purchased for her to prevent her being reliant on state benefits for her care.

It was argued that as Alex spent most nights at his own property and Beryl stayed at hers there were two separate households. Evidence given from family and neighbours of Beryl showed that Alex spent every day and some nights at Beryl’s place and used his car to take her out and paid for shopping and meals on a regular basis. The external nature of their relationship was that of a couple. There was no ‘separate’ life that Alex lead; he simply spent the nights at his own property to ensure it was secure (there had been three burglaries) and to look after the dog which was kennelled there. He had a bed in the hallway but there was no other furniture in the property and the rest of the rooms were closed off, in a dirty state and there was no food in the house.

The law

Mr Justice Neuberger in Re Watson (Deceased) [1990] 3 FCR 595 articulated the view that when considering the question of whether two people live in the same household the court should ask itself

“whether in the opinion of a reasonable person of normal perceptions it could be said that the two people in question were living together as husband and wife, but when considering that question one should not ignore the multifarious nature of marital relationships.”

In Churchill v Roach [2003] WYLR 779 Judge Norris said:

“It is, of course, dangerous to try and define what ‘living in the same household’ means. It seem to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes and to involve an element of community of resources. None of these factors of itself is sufficient, but each may provide an indicator.”

The Judge in this case also referred to Ward LJ’s review of cases on other statutory provisions in other disciplines which rely on the phrase ‘living together in the same household’ in the case of Gully v Dix [2004] WTLR 331. In that case Ward LJ concluded that it was necessary to consider the attitudes of mind of the parties – did they recognise that a relationship of or like marriage subsists.

The Judge noted that having a second home is not a barrier to living together in one household. Potter LJ in Kotke v Saffarini [2005] EWCA Civ 221 extracts some principles from the judgment of Sir Michael Davis in Pounder v London Underground Limits [1995] PIQR 217:

  • That each case is fact sensitive
  • The relevant word for consideration is ‘household’ not ‘house’
  • ‘living together’ is the antithesis of living apart
  • Parties will be in the same household if they are tied by their relationship
  • The tie of that relationship may be manifest by various elements, not simply living under the same rook, but the public and private acknowledgement of their mutual society and the mutual protection and support which binds them together

Other cases were also referred to in particular Ghaidan v Godin-Mendoza [2004] UKHL 30 in which Baroness Hale said:

“Some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships. But most human beings eventually want more than that. They want love. And with love they often want not only the warmth but also the sense of belonging to one another which is the essence of being a couple. Any many couples also come to want the stability and permanence which go with sharing a home and a life together, with or without the children who for many people go to make a family.”

The decision

Walden-Smith J decided that on the basis of the above law and the facts that Alex Bryce was living at Beryl Swetenham’s house in the same household as her.

“They did not share a common pot of finances. There was informality to the arrangement financially. But it was Beryl’s house he moved into. She carried out all those things that a woman of her generation would no doubt have considered natural to do for the man in her life. He did what he would have considered was the right thing to do, which is to pay for any of the outgoings when they were outside the house. In that sense there was a communal pot.”

As to the inferences made by Dr Bryce that all the things which Beryl did for Alex and he for her were no more than what friends would do for each other, the Judge said that when one person to the exclusion of anyone else undertakes all these things for a period of approximately 30 years this is more than just being friends. It is a bond or mutuality and support with each knowing and understanding the needs of the other. It is two people who love one another.

The evidence of Beryl’s daughter on the occasion of advising her of Alex’s death was that her mother was devastated and from then on her health quickly deteriorated – she started having falls and had to go into a home. This, said the Judge, was the effect of the loss of a true, supportive and loving partner.

The Judge concluded that Beryl and Alex lived together as husband and wife in the same household for the purposes of IPFD 1975.

An award was made which was designed (on the evidence of an expert in later life financial planning) to enable Beryl to purchase the heightened care plan to cover her increased care needs. The total premium required was £257,382.64 of which Beryl had £128,000 capital available. That left a shortfall of £129,000. In addition, there was a need for a reasonable financial cushion to allow for inflation. This was seen as needing £3,500 pa with an actuarial life expectancy of 9.5 years – an additional capital sum of £33,250. In addition to allow for other contingencies a total award for Beryl’s maintenance was made of £201,219.

The defendants were liable for Beryl’s costs as she had beaten her own Part 36 offer; costs flowing from the date of that offer would be payable on the indemnity basis.

Practice points

  • These cases are dependent on their facts and require evidence of both the internal and external lives of the parties both of which are important.
  • Look for whether there are ties of mutual society, mutual protection and support between them – it may not manifest itself in communal finances and shared property but nevertheless may still amount to living together as husband and wife in the same household – this is as much a state of mind as factual.


The LawSkills Monthly Digest

Subscribe to our comprehensive Monthly Digest for insightful feedback on Wills, Probate, Trusts, Tax and Elderly & Vulnerable client matters

Not complicated to read  |  Requires no internet searching |  Simply an informative pdf emailed to your inbox including practice points & tips

Subscribe now for monthly insightful feedback on key issues.

All for only £120 + VAT per year
(£97.50 for 10+)

Lawskills Digest
Recommended Posts
Case Summary from LawSkills | Private Client specialist trainersMental capacity test