Bahouse & Anr v Negus

Under the Inheritance (Provision for Family and Dependants) Act 1975, reasonable maintenance for a cohabitee is assessed in all the circumstances and is not confined to subsistence. The court may consider the nature and quality of the lifestyle previously enjoyed with the deceased, including an expensive or lavish lifestyle, when deciding both whether existing provision is reasonable and what provision to award. An appeal against that evaluative judgment requires a legal error or a plainly wrong conclusion. Reasonable differences of view are insufficient, so appellate permission is exceptional.

The executors of Henry Bahouse’s estate sought renewed permission to appeal against an order made by HHJ Kaye QC in the Chancery Division on 23 October 2007. The order, under the Inheritance (Provision for Family and Dependants) Act 1975, transferred a flat and garage to Cyd Negus, the deceased’s long-term cohabitee, and awarded her £240,000. The judge had rejected her separate claim to a beneficial interest in the flat.

Rimer LJ refused permission on paper. The renewed application challenged the judge’s interpretation of maintenance, particularly his consideration of the claimant’s previous lifestyle, and his assessment of her annual needs. The central issue was whether the proposed appeal had a real prospect of success.

Application refused. Mummery LJ held that permission to appeal in a case involving evaluative judgments under the Inheritance (Provision for Family and Dependants) Act 1975 should be granted only where the decision was wrong in principle, because the judge misunderstood the law, or was plainly wrong on the facts or in applying the law to them. Mere disagreement with the generosity of the award, or an attempt to reargue the facts, was insufficient. Munby J agreed.

1. The statutory inquiry involved two questions: whether the disposition made reasonable financial provision for the claimant’s maintenance, and, if not, what provision would be reasonable. The court had to consider the matters in section 3(1).
2. Maintenance had a limited meaning for a non-spouse applicant. It concerned provision enabling the applicant to meet the cost of daily living at whatever standard of living was appropriate in the circumstances. It did not mean merely the minimum needed to get by, nor every benefit reasonably desirable for general welfare. The court applied the guidance in In Re Coventry (Deceased) [1980] Ch 461 and Re Dennis [1981] 2 All ER 140.
3. The nature and quality of the lifestyle previously enjoyed by the applicant and the deceased could properly inform both stages of the inquiry. A lavish or extravagant lifestyle was therefore a permissible consideration. The £38,000 annual needs assessment was not immoderate and was open to the judge on the evidence.
4. An imperfect evidential basis, or the judge’s description of the figure as an assumption, did not establish a misdirection where the assessment was justifiable and material evidence had not been misunderstood. The proposed appeal had no real prospect of success. The application was refused.

• Court of Appeal (Civil Division): On 28 February 2008, the court refused the renewed application for permission to appeal. The application was dismissed because there was no real prospect of success.
• High Court of Justice, Chancery Division: HHJ Kaye QC made an order on 23 October 2007 under the Inheritance (Provision for Family and Dependants) Act 1975, including the transfer of property and a monetary award to the claimant.
• Court of Appeal, paper application: Rimer LJ refused permission on 11 January 2008.