In re Krubert, decd

On an application by a surviving spouse under the Inheritance (Provision for Family and Dependants) Act 1975, the court asks whether the deceased made reasonable financial provision and, if not, what provision should be ordered. Maintenance is neither the exclusive nor necessarily the dominant consideration.

The provision notionally obtainable on divorce is an important factor, but it is only one factor in the overall assessment of reasonableness. It is not the required starting point. The court should not lightly rewrite a will or transfer property absolutely where a life interest, supported by adequate income and capital, provides reasonably for the surviving spouse.

The deceased left his widow personal chattels, £10,000, a life interest in the matrimonial home and the income from his residuary estate. His brother and sister were entitled in remainder. The widow successfully applied under the Inheritance (Provision for Family and Dependants) Act 1975.

The Caernarfon County Court transferred the home and almost the whole estate to the widow absolutely, leaving the deceased's siblings £7,000 each. The siblings appealed. They accepted that the will had failed to make reasonable financial provision, but contended that the recorder's substituted provision amounted to an unjustified rewriting of the will.

The central issues were the weight attributable to a hypothetical divorce under section 3(2), and whether the recorder had erred in principle by awarding the widow an absolute interest in the home.

1. Appeal allowed unanimously. Lord Justice Nourse, with whom Mr Justice Cazalet agreed, held that the recorder had erred in principle by awarding the widow an absolute interest in the matrimonial home. The Court varied the order so that she received the whole estate absolutely, apart from the specifically bequeathed stamp collection, medals and decorations and the home itself. She retained a life interest in the home, with the remainder passing equally to the deceased's brother and sister.

2. Every application under the Inheritance (Provision for Family and Dependants) Act 1975 involves two questions: whether reasonable financial provision was made and, if not, what provision should be ordered. For a surviving spouse, reasonable provision is not confined to maintenance. Maintenance is nevertheless a relevant consideration.

3. The provision which the surviving spouse might have obtained on a hypothetical divorce under section 3(2) is an important consideration, but only one of the statutory factors. Lord Justice Nourse preferred and adopted the approach in Re Besterman, decd [1984] Ch 458. He declined to follow the emphasis in Moody v Stevenson [1992] Ch 486, under which the notional divorce entitlement was treated as the starting point.

4. Mr Justice Cazalet added that excessive emphasis on hypothetical divorce may produce inadequate provision in a small estate. Divorce requires resources for two separate households, whereas a claim under the 1975 Act concerns provision for one surviving spouse. The deceased's notional divorce entitlement may therefore remain available to help provide reasonably for the survivor.

5. The court should not lightly rewrite testamentary dispositions. The widow needed occupation of the home and, if she moved, the income from its proceeds. No financial need for an absolute interest was established. Her contribution to the original purchase price nevertheless supported giving her the liquid residue absolutely, providing capital and income while preserving the siblings' reversionary interest.

1. Court of Appeal: The appeal was allowed unanimously. The recorder's order was varied so that the widow retained a life interest, rather than an absolute interest, in the matrimonial home, with the remainder passing equally to the deceased's brother and sister.
2. Caernarfon County Court: Mr Recorder J T Curran held that the will failed to make reasonable financial provision and ordered that the matrimonial home and almost the whole estate pass to the widow absolutely, subject to specified legacies.