Witkowska v Kaminski

Under the Inheritance (Provision for Family and Dependants) Act 1975, reasonable financial provision for maintenance may be assessed by reference to the place where the applicant can reasonably be maintained, having regard to the deceased’s resources, the applicant’s resources and the basis on which the deceased assumed responsibility. An award need not fund the applicant’s preferred residence in England. Unlawful immigration status does not, without more, prevent an applicant establishing eligibility under the Act. For maintenance and cohabitation claims, the court examines the settled arrangement subsisting immediately before death. Temporary physical separation does not necessarily end either arrangement.

The claimant appealed against a decision of His Honour Judge Cowell in the Central London County Court concerning her claims under sections 1(1)(ba) and 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975. The deceased had lived with and financially supported the claimant, who had substantial continuing connections with Poland. The county court awarded maintenance sufficient to enable her to live there, rather than in London. The claimant challenged that approach, relying principally on her residence in England and European rights. The defendant cross-appealed, arguing that the claimant’s unlawful immigration status and her absence in Poland before the deceased’s death defeated her claims. The central issues were the effect of residence, illegality and temporary separation on eligibility and reasonable maintenance.

The claimant’s appeal and the defendant’s cross-appeal were dismissed.

1. Reasonable maintenance. The county court was entitled to assess the claimant’s reasonable maintenance by reference to what was needed, over and above her own resources, to maintain her in Poland. The deceased’s assumption of responsibility, including his provision of accommodation, household support and money sent to Poland, was a matter to which the court was required to have regard under section 3(4) of the Inheritance (Provision for Family and Dependants) Act 1975. The Act did not require an award sufficient to fund the claimant’s preferred life in London.
2. European rights. Article 12 of the EC Treaty did not apply to the substantive law of succession or to the statutory jurisdiction to alter the effect of an intestacy. The decision was not discrimination on grounds of nationality. Article 14 of the Convention was not freestanding, and article 2 of the Fourth Protocol was not an applicable Convention right because the Protocol had not been ratified by the United Kingdom.
3. Illegality. Unlawful residence was no bar to the claimant relying on the factual relationship required by section 1(1A), or invoking the court’s jurisdiction under the Act. Applying the reasoning in Mark v Mark [2005] UKHL 42, the question whether the parties lived as husband and wife in the same household was factual and did not require the implication of a lawful-residence condition.
4. Continuing arrangements. Under Jelley v Iliffe [1981] Fam 128 and Re Beaumont [1980] Ch 444, “immediately before” death refers to the settled basis or general arrangement for maintenance, not necessarily the final payment. The same approach applied to the settled arrangement for cohabitation. Following Gully v Dix [2004] 1FLR 918, physical separation does not end the household relationship if it is transitory and the relationship remains recognised as subsisting.
5. The judge was entitled to find that the maintenance arrangement continued until death. He was also entitled, though with hesitation, to find that cohabitation continued despite the claimant’s absence in Poland.

• High Court (Chancery Division): dismissed the claimant’s appeal from the decision dated 26 July 2005 of His Honour Judge Cowell in the Central London County Court and dismissed the defendant’s cross-appeal.