The Official Solicitor To the Senior Courts v Yemoh & Ors

This is my judgment on an application by the Official Solicitor, who has been represented before me by Mr Wilson.

The late Benjamin Kodzo Yemoh died on 20 September 1981, domiciled in Ghana. He died intestate. At the date of his death he owned real property in England at Dunford Road, Haringey and Westway, London NW10 (“the properties”). He also left here some limited personal property, in particular some cash in bank accounts.

Letters of administration in relation to the deceased’s English estate were granted to Edmund Yemoh and Patience Frimpong on 17 May 1985. Proceedings were issued against them in 1996 (“HC/1996/03779”) by some beneficiaries. In those proceedings and on 29 February 2000, Master Moncaster appointed the Official Solicitor as Judicial Trustee of the estate of the deceased.

The properties have been sold and the current value of the net residuary estate is £388,725.94, subject to costs.

The Official Solicitor seeks guidance from the court in relation to a number of questions which have arisen, so as to assist conclusion of the administration of the estate and its distribution to those properly entitled. The questions flow from the circumstance that the deceased was survived by a number of polygamous spouses and many children by them. The guidance is sought under section 1(4) of the Judicial Trustee Act 1896.

As explained by Mr Owusu, a Ghanaian lawyer from whom the Official Solicitor has obtained expert evidence, marriages were, and indeed are, relevantly recognised in Ghana in relation to marriages claimed in accordance with Ghanaian Customary Law. Eight women, two through their estates, have claimed they had such marriages with the deceased. This month, Ghanaian lawyers acting for some other such claimants have put in issue the claim made on behalf of Mrs Margaret Anorkor Adams. Subject to doubts in relation to her claim, the Official Solicitor has no reason to doubt the other seven claimed Customary Law marriages. In relation to the claim of Mrs Adams, the Official Solicitor is going to consider separately how best he would seek issues in relation to her marriage to be resolved.

On behalf of the Official Solicitor, Mr Wray has drawn up a schedule of those claiming to be widows of the deceased and of those claiming to be his children. The first defendant is one such child. He has helped the Official Solicitor identify children, thus his full or half brothers and sisters, and helpfully attended before me to give such assistance to the court as he could. The Official Solicitor has been receiving in respect of children Ghanaian birth certificates acknowledging the deceased’s paternity. Some such certificates in relation to the scheduled children remain outstanding. Nonetheless Mr Owusu has assisted the court in casting some doubt on the reliability of birth certificates in Ghana. It appears to the Official Solicitor, and I agree, that he can reasonably rely on the evidence he has already obtained in relation to the scheduled children and treat and proceed on the basis that the schedule is accurate and reasonably identifies the many children of the deceased.

By section 46(1) of the Administration of Estates Act 1925 and so far as relevant where an intestate is survived by a spouse and issue:

“The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, namely;-

(i)

if the intestate leaves a spouse, then in accordance with the following table:

If the intestate-

(2)

leaves issue…

the surviving spouse…shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a fixed net sum, free of death duties and costs, to the surviving spouse…with interest thereon from the date of the death…at such rate as the Lord Chancellor may specify by orderuntil paid or appropriated, and, subject to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held-

(a)

as to one half upon trust for the surviving spouse…during his or her life, and, subject to such life interest, on the statutory trusts for the issue of the intestate, and

(b)

as to the other half, on the statutory trusts for the issue of the intestate.”

The prescribed fixed net sum at the date of the death of the deceased in 1981 was £40,000.

Section 47 of the 1925 Act deals with the statutory trusts of the residuary estate where held for the issue of the intestate. It provides that

“the same shall be held upon the following trusts, namely:—

(i)

In trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate, who attain the age of eighteen years or marry under that age…and for all or any of the issue living at the death of the intestate who attain the age of eighteen years or marry…under that age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking…”

The first question posed by the Official Solicitor is whether the deceased’s polygamous marriages under the Customary Law of Ghana are recognised for the purposes of succession to his real estate in England and Wales.

That involves, in effect, the question whether the surviving polygamous spouses are surviving spouses for the purpose of section 46 of the 1925 Act.

In “The Law and Practice of Intestate Succession” (3^rd Ed) by Sherrin and Bonehill, it is suggested at paragraph 16-017 that the answer to this question does not appear to have been the subject of direct authority. The authors nonetheless submit, as they put it, with some confidence, that the answer should be in the affirmative.

In the context of the Inheritance (Provision for Family and Dependants) Act 1975, it has been held that the wife of a polygamous relationship is a “wife of the deceased” within the meaning of section 1 of that Act (Re Sehota (Deceased) [1978] 3 All ER 385 per Foster J). The judge in Sehota considered historical public policy objections, in this country to polygamy, as set out by Lord Penzance in Hyde v Hyde [1886] LR 1 P & D 130. Lord Penzance concluded that public policy prevented the seeking of matrimonial relief from our courts by a polygamous spouse. He expressly limited such public policy concerns to the issue of matrimonial relief and was not addressing succession rights. In the events which have happened, Parliament was to intervene by section 43 of the Matrimonial Causes Act 1973 to change the position where polygamous spouses and matrimonial relief are concerned.

In Baindail v Baindail [1946] P & D 122, the Court of Appeal recognised that a Hindu polygamous marriage gave the respondent the status of a married man in accordance with the law of his domicile, and thus in that case, found that his pretended marriage with the petitioner in this country, he already having a marriage recognised in the law of his domicile, was null and void. Lord Greene MR at page 127 considered whether the status of the Hindu marriage recognised in the Indian law of domicile, should be recognised in this country:

“English law certainly does not refuse all recognition of that status. For many purposes, quite obviously, the status would have to be recognized. If a Hindu domiciled in India died intestate in England leaving personal property in this country, the succession to the personal property would be governed by the law of his domicile; and in applying the law of his domicile effect would have to be given to the rights of any children of the Hindu marriage and of his Hindu widow, and for that purpose the courts of this country would be bound to recognize the validity of a Hindu marriage so far as it bears on the title to personal property left by an intestate here; one can think of other cases.

Lord Maugham L.C., who delivered the leading opinion of the Committee of Privileges in  Lord Sinha's  case said this: ‘On the other hand it cannot, I think, be doubted now, notwithstanding some earlier dicta by eminent judges, that a Hindu marriage between persons domiciled in India is recognized in our courts, that issue are regarded as legitimate and that such issue can succeed to property, with the possible exception to which I will refer later’…”

The exception to which Lord Maugham was referring concerned real estate before the enactment of the Law of Property Act 1925 and questions as to the status of an heir in context. It does not appear to me that Lord Maugham, in referring to that exception, was suggesting that, for all purposes where real property is concerned, there might be difficulty recognising the legal status of widows or issue of polygamous marriages recognised in the country of the domicile of the intestate. To continue citing from the judgment of Lord Greene in Baindail at page 129:

“The practical question in this case appears to be: Will the courts of this country, in deciding upon the validity of this English marriage, give effect to the status possessed by the respondent? That question we have to decide with due regard to common sense and some attention to reasonable policy...”

(At page 130):

“On principle it seems to me that the courts are for this purpose bound to recognize the Indian marriage as a valid marriage and an effective bar to any subsequent marriage in this country.

Those are the short grounds on which I think this appeal should be decided…Mr. Pritt [for the respondent] in his reply drew an alarming picture of the effect of our decision on the law of bigamy if we were to decide against him. I think it right therefore to say that so far as I am concerned nothing that I have said must be taken as having the slightest bearing on the law of bigamy…”

In Din v National Assistance Board [1967] 2 QB 213 it was recognised in the context of the National Assistance Act 1948 that a polygamously married wife can be treated as a wife.

Coleman v Shang [1961] AC 481 also involved the estate of a Ghanaian intestate. It was held by the Privy Council that a polygamously married wife was entitled to a grant of letters of administration in Ghana, reliance being placed by the Privy Council on the Interpretation Ordinance which ordinarily required words expressed in the singular be interpreted as including the plural. However, what was not addressed in Coleman v Shang is the question of English public policy as regards polygamy: as a case involving Ghanaian law (which applied the equivalent English statute) the Privy Council unsurprisingly in Coleman avoided dealing with the English question of public policy. It would have been odd for them to have denied relief under Ghanaian law to a wife validly married under that law on the basis of consideration of English public policy.

Therefore, whilst Coleman is a case that has similar facts to the instant case, it might be argued that there are public policy considerations applying here which were not relevant in Coleman. However, for the reasons previously discussed in relation to authorities that I have cited, it would appear that public policy objections to the recognition of a polygamous marriage valid in accordance with its law of domicile, which used to be applied in the context of matrimonial relief in our courts, would not appear to me of meaningful relevance to the question of succession under the Administration of Estates Act 1925.

The learned authors of Dicey, Morris and Collins on The Conflict of Laws (14^th Ed) have relied on Coleman as authority for the proposition that: “It is believed that the surviving wives of a valid polygamous marriage could succeed the husband’s property on his death intestate, whether he marry one wife or several” (para 17-196).

It does appear to me that a spouse lawfully married in accordance with the law of his domicile to someone dying intestate, is entitled to be recognised in this country in relation to property, including real property, of the intestate being administered here, as a surviving spouse for the purpose of section 46 of the 1925 Act. In accordance with the law of his domicile, the relevant spouses would properly regard themselves as widows or surviving spouses of the intestate. For that reason principally I have come to the conclusion I have just made. Whilst the draftsman of section 46 may not have had in immediate mind polygamous marriages, he will nonetheless have had in mind that under section 1(i) of the Interpretation Act 1889 “words in the singular shall include the plural, and words in the plural shall include the singular”. Further, by section 6(c) of the Interpretation Act 1978: “words in the singular include the plural and words in the plural include the singular.” Reasoning akin to the Interpretation Ordinance point taken in Coleman appear to help the conclusion I have already reached. The answer, therefore, to the first question posed to me by the Official Solicitor is in the affirmative.

I am accordingly asked, secondly, a number of consequential questions for the purposes of section 46 of the 1925 Act. The first two of those subsequent questions are whether the polygamous spouses together constitute the “spouse” for the purposes of section 46, and (b) do each take a statutory legacy, or do they share in a single statutory legacy? In my judgment, consistently with the recognition of the polygamous spouses as surviving spouses for the purpose of section 46, there is under the construct of section 46, a single surviving spouse statutory legacy, residue otherwise falling to be distributed as to half in relation to a life interest for the surviving spouse, and otherwise recognising the interest of issue and, thus, in a case of this nature, children. In answer to the secondary questions that I have cited, I accordingly consider that the surviving polygamous spouses of the intestate in this case together constitute the “spouse” for the purposes of section 46. Further, in answer to the second of the secondary questions, in my judgment, there is a single statutory legacy rather than seven or eight, depending on the number of polygamous widows, statutory legacies. This case happens to be informative on its facts, because if there were, as it were, any number of statutory legacies, the estate would be wholly exhausted by statutory legacies, which would seem to defeat the construct of section 46 and its provisions, as they divide matters, according to Parliament, on an intestacy between the surviving spouse and issue.

A third secondary question posed to me as 2(c) was whether the spouses should share the statutory legacy as beneficial joint tenants in common. Mr Wilson submits that that question probably does not fall to be answered, since the widows, he submits, would take the statutory legacy absolutely in equal shares. In my view, it does follow from my consideration that there is a single statutory legacy flowing from the death of the intestate and charged on his residue, that that fell to be paid with statutory interest between those who were widows, recognised in accordance with the law of Ghana, in equal shares.

A fourth secondary question flowing from my finding that the widows constitute the spouse for the purpose of section 46 concerns what happened, as has happened in this case, on the death of one of the widows (at least two have died since the death of the intestate) concerning their shares of the life interest in one half of the deceased’s residuary estate. I am asked whether that should accrue to the other widows for their respective lifetimes, or would it vest on the death of the relevant widow in her children. It appears to the Official Solicitor that possibilities in relation to this matter could be that the widows held the surviving spouse interests as beneficial joint tenants so that the remaining widows would share the total life interest until the death of the last of them to die, or they could hold it as beneficial tenants in common, and on the death of each widow the share to which that widow was entitled should vest in the deceased’s children absolutely.

Mr Wilson rightly reminds me that in many situations equity would presume against a joint tenancy. Nonetheless, I remind myself that I am treating the polygamous widows for the purposes of section 46 as the surviving “spouse”. Section 46 provides, relevantly, for the spouse to have in addition to his or her fixed net sum a life interest in half of the balance of the residue. It appears to me that if I treat widows as a surviving spouse, the right answer to the question now under consideration is that the surviving spouses hold the life interest until the death of the last of them to die, when that half of residue will fall in for the benefit of children. That, as a matter of principle, appears to me the right answer to the question now under consideration. As it happens, for most of the Official Solicitor’s purposes here as Judicial Trustee of this estate my answer makes matters simpler to deal with in general terms, though, as it happens, and as Mr Wilson points out to me, there may be some complications from Inheritance Tax perspectives that flow for my consideration. However, the answer I have reached is one on principle, and the Official Solicitor should, in my view, act on the assumption that the life interest will go to the widows until the last of them to die.

A third question on which the Official Solicitor seeks guidance is whether benefits received, whether by widows or children under the deceased’s Ghanaian intestacy, have to be brought into account. The answer to that question, as indeed submitted by Mr Wilson, is, to my mind, made clear on the basis of reasoning of the then Vice Chancellor Sir Nicolas Browne-Wilkinson in Re Collens (Deceased) [1986] Ch 505 at 512D:

“…in my judgment section 46 can only impose a charge for the statutory legacy on the proceeds of the English immovables. There is no way in which it can be made to impose a charge on assets not devolving under English law since such charge is part of the English law of succession. Mr. Simmonds has accepted that there is no implied statutory hotchpot. In the absence of such statutory hotchpot I can see no way in which the charge on the English immovable estate can be said to have been satisfied out of the overseas assets of the deceased.”

A fourth question posed to me was whether all of the deceased’s children living at the date of the deceased’s death are entitled on his intestacy regardless of their legitimacy. The main if not total answer to that question is the fact that the deceased in this case died after the passing of the Family Law Reform Act 1969. Under sections 14 and 15 of that Act illegitimate children of a deceased are expressly entitled to share in the estate of an intestate parent. It follows, in my judgment, that I can beg issues as to whether one should recognise, in accordance with Ghanaian domicile law, the legitimacy of the deceased’s children in this case. They would be entitled even if I should consider them illegitimate. The problem theoretically would become more complicated should the Official Solicitor have had evidence that adult children of the deceased had died in his lifetime, leaving children or issue of their own. It does not appear that the draftsman of, for example, section 14(1) of the 1969 Act considered the position of illegitimate children of a child who dies in the lifetime of his parent who becomes intestate. Strictly, it does not appear to me that the provisions of section 14(1) of the 1969 Act, which provides

“Where either parent of an illegitimate child dies intestate as respects all or any of his or her real or personal property, the illegitimate child or, if he is dead, his issue, shall be entitled to take any interest therein to which he or such issue would have been entitled if he had been born legitimate”

Since, therefore, my answer to the fourth question is in the affirmative, I do not have to consider the fifth question that was posed should my answer have been in the negative.

The sixth question posed by the Official Solicitor is whether he is entitled to distribute the deceased’s estate on the footing that the schedule of Mr Wray exhibited at exhibit JPW/1 to his statement of 13 November 2009 is a complete and accurate record of the deceased children and remoter issue and, if so, on what terms. I have in effect already indicated an affirmative answer to that point. The Official Solicitor recognises that he needs to deal separately with the claim of Mrs Adams to be a surviving polygamous spouse, but it does appear to me that in relation to the evidence collated by the Official Solicitor as to children, including the two children by the deceased of Mrs Adams, is sufficient to enable him to rely on it and to proceed to distribute on the footing that it is correct.

It follows that my answer to question 6 is, in material terms, in the affirmative, and therefore I do not need to consider question 7, which was posed on the basis that I had given a negative answer to that question.

An eighth question is whether the Official Solicitor should pay the deceased’s personal estate in England and Wales to a solicitor appointed by his personal representatives in Ghana. This is a question, in reality, as to what should be a sufficient receipt for the Official Solicitor when he comes to distribution. It does appear to me that a qualified legal practitioner in Ghana acting for relevant personal representatives in Ghana, or for that matter relevant beneficiaries in a wider sense, should give the Official Solicitor a sufficient receipt for his purposes. A further ninth question asks what form of undertaking in relation to distribution the Official Solicitor might need to require before making a payment to such a legal representative. In my judgment, there is no need for a further undertaking. Should a properly qualified legal representative fail properly to deal with matters distributed to him on behalf of a relevant representative or beneficiaries, then that will be a matter for complaint in Ghana of the relevant representative or beneficiaries, and the Official Solicitor does not need to obtain some form of formal undertaking. Given my negative answer to that ninth question, I do not need to answer a tenth question posed on the footing that I had said that there were further steps the Official Solicitor should take before concluding administration by relevant distributions, and I need not answer the tenth question posed to me.

An eleventh question posed to me by the Official Solicitor relates to how he should account for the payment of UK Inheritance Tax out of personal assets in England and Wales, given that persons entitled under English and Ghanaian intestacy rules may be different. In the event, the Official Solicitor through Mr Wilson did not feel it necessary to press me for an answer in relation to that eleventh question and is content to answer it for himself. As it happens, proportionately, the personal estate in England and Wales is modest, and it is hoped that no real difficulties will in practice arise for the Official Solicitor in pursuing completion of administration by reason of his eleventh posed question.

A final question posed of me as a twelfth question deals with the question of recovery of amounts that had been overpaid to beneficiaries by the previous personal representatives.

The Official Solicitor recognises that some children would appear to have been overpaid the share which the Official Solicitor considers should go to beneficiaries under the accounts drawn up for him through Mr Wray. The Official Solicitor proposes to set off against distribution to those children the amounts they have been paid already. That may leave a few children still with an overpayment, which ought to have been brought back into the pot for distribution of monies to all children. Nonetheless, the Official Solicitor considers that pursuit of claims either against the previous administrators or in Ghana against the relevant children would be a disproportionate exercise both in time and costs, should there be a distinction between the two. I have complete sympathy with the view of the Official Solicitor on that point, and I approve of the manner in which he plans to deal with overpayments. Insofar as it is practical and within his hands, he will apply the relevant set off; otherwise, it appears to me that the Official Solicitor, as Judicial Trustee in this case, should let matters lie. If given beneficiaries i.e. notionally underpaid issue in Ghana, wish to take matters further in Ghana, they can. In essence, therefore, I have approved distribution by the Official Solicitor as he plans, subject to resolving the issue about the status of Mrs Adams as the claimed eighth polygamous spouse.

I have indicated that I will order that the costs of the Official Solicitor should come from the estate on the indemnity basis. I will invite Mr Wilson to draw up a minute of the order which flows from my answers to the questions posed of me by the Official Solicitor, and that is my judgment.