Cattle v Evans & Anor (Rev 1)

This is a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). The claimant, Christina Cattle (“Tina”), was born on 15 May 1951 and seeks reasonable provision from the estate of her late partner, David John Evans (“the Deceased”) who died intestate on 23 March 2009 when he was 59 years old.

This is also the trial of a claim by Tina that she holds a beneficial interest in a particular property registered in the sole name of the Deceased, namely 2, Clos Erw Werdd, Cross Hands, Llanelli (“the Cross Hands property”) under a constructive trust.

The first and second defendants (respectively “Paul” and “Gareth”) are the sons of the Deceased and the Deceased’s beneficiaries on the intestacy. Paul is the sole administrator of the Deceased’s estate.

Paul and Gareth dispute that the disposition of the Deceased’s estate did not make reasonable financial provision for Tina. They also dispute that Tina held any interest in the Cross Hands Property under a constructive trust.

Tina met the Deceased in June 1990. At that time Tina was living at 24 Wye Close, Wellingborough, a four bedroom detached property which she had bought some two years earlier and owned subject to a small mortgage. She had a job with the Nationwide Building Society. The Deceased was living in a rented flat with Gareth. He was separated from his wife but was party to ongoing divorce and ancillary relief proceedings. He was working for Aquascutum.

During the first year of their relationship, the Deceased moved into Tina’s home at 24 Wye Close. Gareth also moved in and paid Tina the same rent he had been paying to the Deceased. However, this arrangement did not prove satisfactory because Tina had two young children, Antony and Victoria. The situation was resolved when, early in November 1990, the Deceased purchased 20 Jasmine Road, Kettering for £45,000 with the assistance of a mortgage of between £35,000 and £39,000. This was a modest two bedroom semi-detached property.

The relationship continued over the next few years and, in 1993, the Deceased proposed marriage to Tina, bought her an engagement ring and they had a party with friends to celebrate. They did not, however, marry either then or at any later date.

In 1994, Tina sold 24 Wye Close for £80,500 and bought a similar property at 10 Dene Close, Wellingborough, again with the assistance of a small mortgage.

In 1997, the relationship between Tina and the Deceased came to an end and the Deceased began a relationship with an old work colleague, Eva, which continued for between one and two years.

In 1999, the Deceased resumed his relationship with Tina and, in October of that year, they went on a cruise together to celebrate his 50^th birthday.

In January 2002, Tina sold 10 Dene Close for £146,500, repaying the outstanding mortgage of about £23,500. At the same time she bought 16 Denby Dale, Wellingborough, another four bedroom detached property. Although Tina could have bought the property without a mortgage, it seems she did secure a mortgage loan of about £12,000 and, after expenses, received a cash balance of about £8,000. Throughout this period, the Deceased remained at 20 Jasmine Road.

In the meantime, the Deceased had left Aquascutum and moved to another clothing company called Windsmoor in London. It seems he did not enjoy the travelling and so, in 1999, left Windsmoor and secured a job in Leicester which was closer to his home. He was made redundant in 2002 and, after a period of unemployment, began work with another clothing company called Eveden. The Deceased was not, however, very happy in his new job and, as a result, began to think about moving to Wales, where, it seems, he had always had a wish to live.

In 2003, Tina and the Deceased began to view properties in Wales and found a bed and breakfast property in North Wales which they decided to buy. Their offer was accepted and they put their own properties on the market. The Deceased received an offer for the purchase of 20 Jasmine Road for £90,000 but Tina’s property did not prove so readily marketable and they lost their intended purchase. As a result, the Deceased withdrew 20 Jasmine Road from the market.

In February 2004, and the move to Wales having failed to materialise, Tina and the Deceased went out to Spain looking for, so far as Tina was concerned, a holiday home. Eventually they found a property in La Vereda De Santa Ana Caudete (“the Spanish property”). The Deceased suggested they both retire and move to Spain permanently and, not without some hesitation, Tina agreed and so they both put their properties on the market. The Deceased’s property at 20 Jasmine Road sold first, in about April 2004, for £90,000 and he went to live with Tina at 16 Denby Dale. From the proceeds of that sale, the Deceased paid the whole, or at least the large part of the purchase price of the Spanish property and it was conveyed into their joint names.

In September 2004, Tina sold 16 Denby Dale and with the net proceeds of the sale, amounting to about £153,000, purchased a property at 7 Crome Close, Wellingborough for about £113,000. She considered this was somewhere for her two children to live until they could find a home of their own and that it could then be rented out to provide a source of income for herself and the Deceased.

Tina and the Deceased then moved to Spain. It is clear that the Spanish property was in a poor condition and its renovation required a good deal of work. Tina undoubtedly contributed to the cost of this work although the precise extent of that contribution is disputed. She says she contributed about £70,000; Paul and Gareth say she only contributed about £52,000. I am satisfied that Tina’s account is broadly accurate and that she and the Deceased each contributed £60,000-£70,000 to the purchase and renovation costs. Moreover, and perhaps more importantly, there is no dispute that they owned the property jointly.

The Deceased’s mother died shortly before the move to Spain and, under the terms of her will, the Deceased inherited a substantial sum of money which largely funded his living expenses over the next four to five years.

In the course of 2006, Tina provided a good deal of financial assistance to her son, Antony, who had been suffering from leukaemia. In February 2006, she repaid a career development loan of £8,500 he had taken in 2005. Then, in June 2006, she mortgaged 7 Crome Close for £80,000 and, two months later, transferred a further £64,400 to allow him to secure a mortgage and purchase a home of his own.

Tina and the Deceased settled well in Spain, however the Deceased had, as Tina put it, “itchy feet” and, on his 58^th birthday, 2 October 2007, told Tina that his father had died when he was 58 and that he felt that he now had to travel back to the UK to live in Wales. At about this time, Tina’s finances received a boost in the form of a maturing endowment policy worth about £13,800.

In the first quarter of 2008, Tina and the Deceased returned to the UK on a number of occasions to look for a new home. Eventually, in April 2008, they found the Cross Hands property. In the meantime they had secured an offer on the Spanish property and were required to give vacant possession by 21 May 2008. They instructed a firm of solicitors called Peter Lazarus in connection with their proposed purchase.

At this time Tina and the Deceased also began to consider making the desirability of making wills. An attendance note of Peter Lazarus dated 24 April 2008 records that the Deceased and Tina decided that they would buy the Cross Hands property with the proceeds of sale of the Spanish property. However, they wanted the new property conveyed into the sole name of the Deceased because Tina already had a property in her name and they perceived this would secure some kind of tax advantage. The attendance note also records that once they had completed the purchase, they anticipated making mirror wills, though it does not explain what the essential terms of those wills would be.

Shortly before the date fixed for exchange and completion of the Cross Hands property, the Deceased and Tina were told that there was a problem with its drainage system and that they should not proceed until it had been resolved.

Tina and the Deceased now found themselves in a predicament because they did not have a home into which they could move. For about a week following their return from Spain at the end of May 2008, Tina and the Deceased lived separately, Tina with her son Antony, and the Deceased with his sister Marilyn. At about this time, the Deceased began to feel unwell and underwent various tests at the local hospital in Kettering. Marilyn told me, and I accept, that he was very depressed and, when Tina came to collect the keys to his car, they had a serious argument. After Tina had left, the Deceased told Marilyn that he and Tina had made a decision to go their separate ways and that they had both had enough of each other. However, at the end of the week Tina telephoned the Deceased with some good news. The vendor of the Cross Hands property had telephoned her to say that for a single payment of £1000 they could live at the property until all the problems with the drains had been resolved. After several telephone conversations between the Deceased and Tina, they decided to accept the offer and move to Wales.

In the course of June and July 2008, Tina and the Deceased received the sale proceeds of the Spanish property. They decided to divide those proceeds, with Tina receiving two payments, one of £58,000 being almost exactly half of the first tranche of the proceeds and the other of £21,460 being exactly half of the second and final tranche of the proceeds.

In July 2008, the Deceased was diagnosed with lung cancer and his prognosis was, at best, uncertain. But by the end of the month it became apparent that his condition was terminal.

Nevertheless, on 28 November 2008 the Deceased completed the purchase of the Cross Hands property for £163,000. However, contrary to their plans in April, Tina made no financial contribution to the purchase (save for £260 paid as a deposit for the solicitor’s fees and £500 taken into account on completion), and the property was conveyed into the sole name of the Deceased.

Shortly before the completion of the purchase of the Cross Hands property, the Deceased transferred his instructions to another firm of solicitors called Andrew Markham. Nevertheless, and again contrary to their plans in April, no steps were taken by the Deceased and Tina at that time to write their wills. Instructions in that regard were not given to Andrew Markham until 27 February 2009. An attendance note of a meeting which took place on that day records that under the terms of the Deceased’s proposed will, the Cross Hands property would pass to Tina and the residue of his estate to Paul and Gareth. Tina expected the draft wills to be drawn up within a week. Instead, early in March 2009, Andrew Markham sent terms of engagement to Tina and the Deceased. Tina returned them immediately. By this time the Deceased’s health was deteriorating rapidly and so Tina chased Andrew Markham repeatedly. Eventually, on 20 March 2009, Andrew Markham posted draft wills to the Deceased and to Tina and they were received the following morning. Under the terms of the draft of the Deceased’s will, the Cross Hands property and the Deceased’s pension would pass to Tina and the residue to Paul and Gareth.

The Deceased died intestate in the afternoon of 21 March 2009. His estate comprises the Cross Hands property which is valued at about £150,000; and cash and chattels worth a total of some £70,000, including his pension which is valued at about £35,000.

Tina’s case based on these events and as developed in her witness statements is as follows. She and the Deceased decided to put the Cross Hands property into the Deceased’s sole name for tax reasons because she already owned 7 Crome Close in her sole name. Nevertheless, it was always agreed between them that the Cross hands property would be their property and that they would both have an equal interest in it. They had been in a relationship together for some 18 years and had been living together for some four years and they trusted each other completely. When the time came to complete the purchase in late November 2008, it was clear that the Deceased was terminally ill. But they thought it best to buy the property and put it into the name of the Deceased “until things were sorted out, and anyway we would be making wills so there was no hurt in having it in his name”. As for the monies used to fund the purchase, they decided to use the Deceased’s share of the monies derived from the sale of the Spanish property and that she should use her share to pay off the mortgage on 7 Crome Close. However, she only used about £20,000 for that purpose and added the balance to her savings.

Tina also says that during this time she and the Deceased both wanted to make mirror wills but that neither of them appreciated how fast the Deceased’s condition would deteriorate. Further, she had taken on a cleaning job to obtain some extra income; the Deceased was not allowed to drive because of his illness and she therefore had to drive him to hospital appointments twice a week; and her father, who was then 90 years old, fell seriously ill and she had to travel backwards and forwards to Essex to see him. He died on 28 January 2009.

Paul and Gareth, supported by the Deceased’s sister Marilyn, say that it was their understanding that the Deceased intended to separate from Tina after their return from Spain and for that reason went to stay with Marilyn for a while at the end of May 2008. However, when it became apparent that the Deceased could rent the Cross Hands property until the problems associated with it could be resolved, they agreed to have another go at living together. Paul, Gareth and Marilyn each say in their witness statements that the Deceased told them that he intended to leave his estate to the defendants; that he knew that the estate would pass to them if he did not make a will and they believe that he thought Tina was well able to look after herself financially. They further say that they think it unlikely that the Deceased intended to execute the draft will which was, they believe, Tina’s idea; that the subject of the will was a delicate one between them because Tina wanted the Deceased to execute the will but the Deceased did not, but at the same time did not want to fall out with her about it. They further say that Tina and the Deceased were not dependent upon each other and that they were always in a position to live independently should they so decide.

Tina contends that, by reason of all these matters, the Deceased held the Cross Hands property (and, indeed, they both held all their assets) on constructive trust. Her case is put this way in paragraph 20 of the particulars of claim:

“20.

The nature of that trust in the circumstances of the case was of an ambulatory nature permitting (amongst other things):

20.1.

The beneficiaries from time to time to live [in the Cross Hands property];

20.2.

After the death of one of the beneficiaries, the other could continue to live [in the Cross Hands property] or sell it and use the proceeds (or part) to buy another property to live in, to fund usual living expenses and suchlike in the same manner as the trusts found in many cases of mutual wills but, consequently not permitting of waste.

20.3.

That the surviving beneficiary would leave their estate on their death substantially equally between [the Deceased’s and Tina’s] children.”

Tina further contends that this constructive trust arose by express agreement between her and the Deceased, alternatively by the words they used coupled with their actions.

I am unable to accept these submissions. I do not accept that when the Cross Hands property was acquired the Deceased and Tina reached an agreement, arrangement or understanding that Tina held any beneficial interest in it. Nor do I accept that any such agreement, arrangement or understanding was reached at any later date. I reach this conclusion for all of the following reasons.

First, it is apparent from the history I have related that until they moved to Spain in 2004, the Deceased and Tina kept their properties and finances completely separate.

Second, the Deceased and Tina undoubtedly owned the Spanish property jointly and they each made broadly the same financial contribution to it. But even at that time Tina and the Deceased kept their other assets separate and retained sole ownership of them. In Tina’s case, I am quite satisfied in light of her evidence that she regarded 7 Crome Close and her other assets as entirely her own to do with as she wished. As I have said, she mortgaged 7 Crome Close and transferred two substantial sums to Antony, £8,500 to repay his development loan and then £64,500 to enable him to buy his own property. For his part, the Deceased received a substantial inheritance from his mother. None of these monies were pooled or shared.

Third, Paul, Gareth and Marilyn each told me, and I accept, that the relationship between the Deceased and Tina was less than secure. The Deceased never told any member of his family that he and Tina had become engaged; he gave Paul the impression in the course of telephone conversations between 2004 and 2008 that their relationship was strained; on a visit to England from Spain, he told Gareth that they were splitting up; in May 2008 he told Marilyn that they had decided to go their separate ways; and he separately told Paul and Gareth that he intended to leave his estate to them. I also consider it significant that, despite their engagement, Tina and the Deceased never married.

Fourth, the attendance note prepared by Peter Lazarus dated 24 April 2008 to which I have referred makes clear that, at that time, the Deceased and Tina were planning to buy the Cross hands property with the proceeds of the sale of the Spanish property. Had that occurred then Tina’s contention that she owned a beneficial interest in the property would have had some force. Unfortunately, however, the Deceased and Tina were then faced with rapidly changing circumstances as it became clear they could not proceed with the purchase and then, in July, the Deceased was diagnosed with terminal cancer. These events caused the Deceased and Tina to change their plans substantially. The proceeds of sale of the Spanish property were not pooled but divided almost equally between them; the purchase of the Cross hands property was funded almost entirely by the Deceased out of his own monies; and the property was conveyed into his sole name.

Fifth, throughout 2008 and 2009 Tina continued to use her own monies entirely as she wished. In this regard I regret to say I believe Tina’s accounts of her dealings with her assets have not been candid. The following matters have caused me particular concern.

Sixth, in my judgment the terms of the draft wills prepared for Tina and the Deceased in February 2009 are not consistent with the existence of a constructive trust of the kind contended for by Tina. They contemplate that the Deceased was the legal and beneficial owner of the Cross hands property. Moreover, although I accept Tina’s evidence as to the practical difficulties which she faced towards the end of 2008 and at the beginning of 2009 and to which I have referred in paragraph [30] of this judgment, I do not believe the Deceased intended to make a will in the form of the draft prepared for him. This is a matter to which I shall return later in this judgment.

I conclude that the Deceased and Tina intended and understood that the Deceased was the legal and beneficial owner of the Cross Hands property and that there was no change or evolution in this position over time. I reject Tina’s evidence and case to the contrary.

Tina contends that she may apply to the court under section 2 of the 1975 Act on the basis that:

Section 1(2)(b) provides that for this purpose reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for Tina to receive for her maintenance.

I am satisfied that Tina lived in the same household as the Deceased and as his wife, first in the Spanish Property from 2004 to 2008 and then in the Cross Hands property until his death on 23 March 2009, that is to say for nearly 5 years. This is therefore a case within section 1(1)(ba).

In deciding whether it may and, if so, how to exercise the power to make an order under the 1975 Act, the court must have regard to the various matters set forth in section 3. So far as relevant, they read as follows:

3  Matters to which court is to have regard in exercising powers under s 2

(1)

Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a)

the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)

the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)

the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)

any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)

the size and nature of the net estate of the deceased;

(f)

any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)

any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

….

(2A)     Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(ba) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—

(a)

the age of the applicant and the length of the period during which the applicant lived as the husband or wife [or civil partner] of the deceased and in the same household as the deceased;

(b)

the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

I must therefore consider whether the disposition of the Deceased’s estate effected by the law of intestacy is not such as to have made reasonable financial provision for Tina and, if I am satisfied that it has not, what, if any, order to make.

The starting point must be that no provision has been made for Tina at all. She is now nearly 60 years old and lived with the Deceased for nearly five years. She and the Deceased contributed equally to looking after their home together.

Tina’s position today is that she owns 7 Crome Close which is worth about £110,000 but is still subject to a mortgage of £15,000, and a caravan which she bought for £29,000 in April 2010. She also has cash deposits of about £2,000. In addition, it has now emerged that in about two years time Antony is likely to be in a position to repay a further £20,000 of the moneys Tina transferred to him in 2006 to allow him to buy his own home. The prospect of him being in a position to repay any further monies in addition to the £20,000 is, in my judgment, so speculative that I should discount it altogether.

Tina took up a job as a cleaner in 2008 following her return from Spain to increase the income available to her and the Deceased but she had to give up that work in September 2009 as a result of the strain it was putting on her knees and back. Although she has had a number of job interviews, she has received no offers of further work and thinks it is unlikely any will be forthcoming. Her only source of income is therefore the rental from 7 Crome Close and a small pension from the Nationwide Building Society of about £400 per annum, although she will in due course receive a state pension. She points out that if she has to leave the Cross Hands property and move into 7 Crome Close then she will effectively have no income and will have to claim welfare benefits.

Turning to the wider considerations, there are no other applicants and I have no evidence to suggest that Paul or Gareth have or are likely to have any particular financial needs. I must proceed on the basis they are self supporting adults.

Tina argues that the Deceased had responsibilities and obligations towards her which are reflected in the terms of his draft will and can only be discharged and satisfied by the transfer to her of the bulk of his estate, that is to say the Cross Hands property and his pension fund with a combined value of about £185,000.

I find myself quite unable to accept this submission. I have rejected the contention that the Cross Hands property and the other assets of the Deceased were subject to a constructive trust. For the reasons I have given I am in no doubt that, save for the Spanish property, Tina and the Deceased have in practice kept their property and other assets separate. Moreover, I am conscious that once it became clear to the Deceased and Tina that his condition was terminal, it was Tina rather than the Deceased who was determined to have their wills drawn up. By February of 2009, when instructions were given to Andrew Markham, the Deceased was close to death and I found Tina’s evidence that he had an intention to make a will in that form wholly unpersuasive. In reaching this view I have had in mind that Tina has not been frank about her assets and also the clear impression I gained from her evidence that for many years she has been concerned to preserve those assets for herself and her children so far as possible, even to the extent of concealing them from the defendants and this court.

Nevertheless I recognise that Tina and the Deceased had a long standing relationship and lived together for many years. Tina was prepared to move to Wales, a considerable distance from her children because that is where the Deceased wished to make his home. Further, and despite the separation of their assets and finances, they planned a future together which would continue to provide economies and mutual benefits.

I must also have regard to the size of the estate. It is not large, comprising as it does only the Cross Hands property worth about £150,000 and cash and chattels of about £70,000, including a car worth a few thousand pounds which Tina is currently using and which Paul and Gareth have no objection to her keeping.

Finally I must consider all other matters, including Tina’s conduct, which in all the circumstances of the case I consider relevant in determining whether reasonable financial provision has been made for her maintenance. Tina obviously anticipated a comfortable though modest style of life with the Deceased and that would only have been possible if she continued to enjoy the income derived from the letting of 7 Stone Close. But I also think it fair to take into account that Tina has had the benefit of living in the Cross Hands property rent free since the death of the Deceased and has chosen to spend a large sum of money on the caravan which seems to me to have been be an unnecessary and inappropriate extravagance and something she could easily have managed without. Nor do I think that now Tina is alone she has any need for a home of the size and value of the Cross Hands property.

Weighing all these matters together I have come to the conclusion that the law relating to intestacy has not made reasonable financial provision for Tina and that she reasonably requires to be housed in a property which will allow her to continue to enjoy an income from the letting of 7 Crome Close. Tina has no wish to continue to live in Wales and would prefer to move back closer to her children in Northamptonshire. As for the size and value of that property, it seems to me that reasonable provision does not require it to be of the size or value of the Cross Hands property and that something of the size and value of 7 Crome Close or Antony’s new home would be much more appropriate. I do not have a great deal of evidence as to the cost of such a property in Northamptonshire but I believe I have just enough to arrive at a reasonable estimate and I am reluctant to give directions for a further hearing to determine this issue on fuller evidence because that will inevitably result in the parties incurring additional and, I believe, disproportionate costs. The information before me suggests that 7 Crome Close is currently valued at between £110,000 and £112,000 and I understand from Tina’s evidence that the property in which Antony is now living is currently valued at about £100,000.

Doing the best I can, I have reached the conclusion that reasonable financial provision requires Tina to be housed in a property with a purchase price of no more than £110,000. I considered with counsel during the course of the hearing whether the financial provision should be made by way of periodic payment so as to allow the rental of a property or by way of capital sum for the purchase of a property with Tina to have the benefit of an interest in it which entitles her to live there for so long as she wishes. In light of the submissions made to me, I am satisfied that the latter is the appropriate course.

I propose therefore to make an order which provides for the payment from the estate of a sum for the purchase of a new home for Tina at a price of not more than £110,000 and for the payment of the costs incidental to that purchase. The property is to be held upon trust for Paul and Gareth subject to an interest in favour of Tina which entitles her to live in the property for so long as she wishes to do so, and provided that she keeps the property insured comprehensively and to its full reinstatement value. In the event that Tina is unable to continue living in the property then it may be sold and the proceeds of sale used to purchase such other property or properties as may be suitable for Tina to live in, and any such other property will be held upon trust for the benefit of Paul and Gareth subject to a like interest in favour of Tina.

I will hear further short submissions as to the precise form of order if it cannot be agreed.