Capocci v Cooke & Ors

Under the Inheritance (Provision for Family and Dependants) Act 1975, the court must decide objectively whether the deceased’s disposition produces an unreasonable result and fails to make reasonable financial provision. For a surviving spouse, section 3(2) requires regard to the provision reasonably expected on divorce, but that comparison is a factor in the overall assessment rather than a substitute for it. An appellate court should not interfere with the first-instance value judgment unless it was plainly wrong.

The appellant, the surviving husband of the deceased, appealed from the dismissal by Mr Assistant Recorder Hyland, sitting in the Newcastle-upon-Tyne County Court, of his application under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975. He contended that the testamentary provision made for him was unreasonable and that the recorder had applied the wrong standard and failed to take proper account of section 3(2).

The deceased had left him a conditional life interest in her share of the former matrimonial home. The central issues were whether section 3(2) required a different or freestanding approach for a surviving spouse, and whether the recorder’s decision was vitiated by an error of principle.

1. Appeal dismissed. The Assistant Recorder’s conclusion that the provision made by the will was reasonable was plainly open to him. Sir Iain Glidewell agreed that there was no error of principle and that the decision was sensible.
2. Section 3(2) of the Inheritance (Provision for Family and Dependants) Act 1975 is not a freestanding provision. It must be read subject to section 3(1). The comparison with the provision which the spouse might reasonably have expected on divorce is an additional criterion to which the court must have regard in deciding whether the testamentary provision is reasonable. It does not require the court to equate the position on death with the position on divorce.
3. The court followed the guidance in Re Coventry (deceased) [1980] Ch 461; [1979] 3 All ER 815. The Act does not require the court to substitute its own preferred testamentary disposition. The question is whether, viewed objectively, the disposition produces an unreasonable result. The assessment is a discretionary, factual and qualitative value judgment, and an appellate court should not interfere unless the decision below was plainly wrong.
4. Although the Assistant Recorder did not expressly refer to section 3(2), his judgment read as a whole showed that he had regard to it, including the length and duration of the marriage. There was therefore no material misdirection or error of principle.

• Newcastle-upon-Tyne County Court: Mr Assistant Recorder Hyland dismissed the husband’s application under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 on 31 March 1995.
• Court of Appeal (Civil Division): The appeal was dismissed.