The Official Solicitor To the Senior Courts v Yemoh & Ors

For intestacy purposes, a polygamous spouse lawfully married under the law of the deceased’s domicile may be recognised as a surviving spouse in relation to English property, including land. Where there is more than one such spouse, they together constitute the statutory “spouse” and share one statutory legacy. Their life interest in half of the residue continues until the death of the last surviving spouse, after which the fund passes to the issue. Benefits received under a foreign intestacy do not satisfy or reduce the charge imposed on English property, because there is no implied statutory hotchpot. Children born outside marriage are entitled to share under the Family Law Reform Act 1969, subject to the legislation’s treatment of more remote issue.

The Official Solicitor, appointed judicial trustee of the English estate of a Ghanaian intestate, sought directions for distribution of the estate. The deceased had died domiciled in Ghana, leaving English real and personal property, several women claiming to be wives under Ghanaian Customary Law, and numerous children.

The court considered whether the customary marriages were recognised for succession under the Administration of Estates Act 1925, whether the spouses shared one or several statutory legacies and life interests, whether foreign benefits had to be brought into account, the entitlement of children regardless of legitimacy, and practical questions concerning evidence, receipts, undertakings and overpayments.

1. Recognition of spouses. A marriage lawfully contracted under the law of the deceased’s domicile may be recognised in England for succession to property administered here, including real property. Earlier public policy objections concerning polygamy were directed to matrimonial relief and had no meaningful application to succession under the Administration of Estates Act 1925. The answer to the first question was therefore affirmative.
2. One statutory entitlement. The polygamous spouses together constituted the “spouse” for the purposes of section 46. They were entitled to one statutory legacy, shared equally, rather than one legacy for each spouse. The life interest in one half of the residue was held collectively until the death of the last surviving spouse, when that half fell into the fund for the children.
3. Foreign benefits. Benefits received under the deceased’s Ghanaian intestacy did not have to be brought into account. Applying the reasoning in Re Collens (Deceased) [1986] Ch 505, section 46 imposed a charge only on the English immovables and there was no implied statutory hotchpot.
4. Children and administration. Under sections 14 and 15 of the Family Law Reform Act 1969, the children were entitled to share whether or not legitimate. A theoretical difficulty concerning illegitimate grandchildren was noted, but did not arise on the facts. The Official Solicitor could rely on the schedule of children, subject to separately resolving Mrs Adams’s disputed status as a spouse.
5. Practical directions. A properly qualified Ghanaian legal practitioner could provide a sufficient receipt for distribution, and no additional undertaking was required. The proposed set-off of overpayments was approved; otherwise, pursuing recovery was disproportionate. The Official Solicitor’s costs were payable from the estate on the indemnity basis.