Barkatali v Davies & Ors

Under the Inheritance (Provision for Family and Dependants) Act 1975, reasonable financial provision for an eligible applicant is provision for maintenance, assessed by reference to the applicant’s needs and the appropriate standard of living. A wish to remain in a particular property does not itself establish a maintenance need. Although the court may have jurisdiction to order a property’s transfer or purchase at market value, that jurisdiction does not make such an order appropriate. Interim relief will not be granted where the applicant has no serious issue as to a substantive entitlement to remain in the property. Nor should possession ordinarily be restored against an estate owner where the applicant has no right to possession.

The applicant had lived in a flat with the deceased lessee as a licensee. After the lessee’s death, the first respondent, the deceased’s father and eventual sole beneficiary, changed the locks while the applicant was absent. The applicant sought an interim injunction requiring restoration of access and restraining interference.

The application relied on two grounds: a prospective claim under the Inheritance (Provision for Family and Dependants) Act 1975, and an alleged better possessory right arising from the applicant’s prior occupation. The court considered eligibility, reasonable financial provision, the possible purchase of the flat, and the effect of the absence of an administrator.

1. The application for interim relief was dismissed. The court would hear any subsequent submissions concerning access to remove belongings and costs.
2. The applicant was assumed to qualify under section 1(1)(ba), read with section 1(1A), on the evidence then available. His alternative reliance on section 1(1)(e) was doubtful because the evidence appeared to show that he had maintained the deceased rather than being maintained by him.
3. Following Ilott v Mitson (no 2) [2018] AC 545, the relevant question was whether the intestacy rules failed to make reasonable financial provision. For this applicant, that meant provision for maintenance, judged by his needs and the standard appropriate to the circumstances. The evidence disclosed no apparent need for financial maintenance.
4. Lewis v Warner [2018] Ch 450 established that the court had jurisdiction to make an order enabling an applicant to buy a particular property at market value. That jurisdiction did not mean that such an order was appropriate. The applicant had not shown that his maintenance needs could only, or best, be met by remaining in this flat. A preference for continuing to live there, even if genuine and strongly held, was not a maintenance need.
5. There was therefore no serious issue to be tried as to an ultimate entitlement to remain in the flat under the 1975 Act. It was unnecessary to consider the adequacy of damages or the balance of convenience. In the language of American Cyanamide, the threshold was not met.
6. The court was prepared to assume that the eviction had been unlawful and strongly disapproved of the respondent’s conduct. Nevertheless, the flat belonged to the deceased’s estate, and title was vested in the Public Trustee while no administrator had been appointed. The court would not restore possession to a person with no right to possession against the wishes of the estate. The absence of an administrator did not justify a different result.

First instance decision. No prior appellate decision was stated in the judgment.