Dingmar v Dingmar Rev 1

Under section 9(1) of the Inheritance (Provision for Family and Dependants) Act 1975, a deceased joint tenant’s severable share remains identifiable property which may be treated as part of the net estate. The reference to its value immediately before death does not convert the share into a fixed monetary fund or cap the interest which may be transferred to an applicant.

The court must assess reasonable financial provision by reference to the facts known at the hearing. It may therefore order the transfer or settlement of the whole severable share where that is just, notwithstanding appreciation or depreciation of the property since death.

The deceased died intestate in 1997, leaving his widow and children in the former matrimonial home. The house had been held beneficially by the deceased and the respondent son as joint tenants. It passed to the son by survivorship, leaving no estate of value.

After the son obtained a possession order, the widow applied under section 9 of the Inheritance (Provision for Family and Dependants) Act 1975. His Honour Judge Behrens treated £20,000, being the deceased’s half share at death, as part of the estate. He awarded the widow a fixed beneficial interest of that amount, although he would otherwise have awarded a half share.

The appeal concerned whether section 9 permitted a transfer of the deceased’s full former half share, or only an interest limited by its value at death.

1. Appeal allowed by a majority. Jacob and Ward LJJ held that section 9(1) of the Inheritance (Provision for Family and Dependants) Act 1975 enabled the court to treat the deceased’s former half share of the house as property comprised in the net estate. The words concerning its value immediately before death did not impose a monetary cap which reduced that share to a fluctuating fraction of the house.

2. The statutory purpose was to facilitate reasonable financial provision where survivorship would otherwise remove jointly owned property from the estate. A construction which made the applicant lose the benefit of an increase in value, but made the surviving joint tenant bear a decrease, was irrational and inconsistent with that purpose. The valuation language identified the relevant pre-death interest and could serve valuation and tax purposes; it did not displace the character of the asset as property.

3. Section 3(5) required the court to consider facts known at the hearing. Once the severable share was deemed part of the estate, it was to be considered in the same way as other estate property. The powers in section 2(1)(c) and (d) therefore extended to its transfer or settlement.

4. Lloyd LJ dissented on the construction of section 9(1). He considered that the value at death capped the asset available, but would nevertheless have allowed the appeal to the extent of a 21% beneficial interest, reflecting £20,000 as a proportion of the house’s current value.

5. The court replaced the judge’s order with an order under section 9(1), and ordered under section 2(1)(c) and section 2(4)(a) that the respondent hold the house on a trust of land for himself and the claimant as tenants in common in equal shares.

• Court of Appeal (Civil Division) — allowed the claimant’s appeal by majority and substituted an order giving her a half beneficial share: [2006] EWCA Civ 942.
• Leeds County Court — His Honour Judge Behrens held that section 9 limited the claimant to a fixed beneficial interest worth £20,000 at the date of death.