Patricia Kelly-Lambo v Esther Olufunmilayo Lambo

Under rule 22 of the Non-Contentious Probate Rules 1987, a surviving spouse has priority for a grant of letters of administration. The High Court nevertheless retains a broad discretion under section 116 of the Senior Courts Act 1981 to pass over a person who would otherwise have priority and appoint another administrator where special circumstances make that just or expedient. The discretion may be exercised even if the competing claimant’s spousal status is assumed. Relevant factors include the history and duration of the relationships, the deceased’s cohabitation with each claimant, and the circumstances existing at death.

The claimant sought a grant of letters of administration and rectification of her deceased husband’s death certificate. She relied on a marriage to the deceased in Nigeria in 1993 and their subsequent cohabitation in England until his death in 2017. The defendant relied on an alleged earlier Nigerian marriage in 1962 and disputed that she had been divorced.

The court found that the defendant had not established the alleged divorce or the legal status of her earlier marriage. It then considered whether, even assuming that the defendant was also a spouse, she should receive a grant alongside the claimant or whether the claimant should receive the sole grant.

1. The claimant was entitled to a grant. The defendant admitted the claimant’s marriage but failed to prove the alleged divorce. No Nigerian legal evidence established either the divorce or the asserted invalidity or polygamous character of the marriage. The claimant was living with the deceased as his wife at the date of his final illness and was therefore a surviving spouse for rule 22 of the Non-Contentious Probate Rules 1987.
2. The defendant’s own spousal status was not established. The evidence concerning the alleged 1962 ceremony and certificate was inconclusive, and no Nigerian law evidence confirmed the marriage. The court accepted that a marriage may be presumed where a ceremony is followed by cohabitation, but held that this issue was not determinative.
3. The court exercised its section 116 discretion. Following the general approach described in Gudavadze & ors v Kay & ors, the power under section 116 of the Senior Courts Act 1981 was treated as a broad power to override the otherwise applicable priority under the Rules. The relevant circumstances included the date and duration of the alleged earlier relationship, its termination at least by 1993, the claimant’s prolonged cohabitation with the deceased, and the fact that she was living with him at death.
4. Even if the defendant’s marriage were presumed or recognised, and even if the reasoning in Official Solicitor to the Senior Courts v Yemoh and others were adopted so that a surviving spouse in a polygamous marriage could qualify under the Rules, it was just and expedient under section 116 to appoint the claimant alone. The court ordered a sole grant in favour of the claimant. Rectification of the death certificate was reserved for written submissions on the court’s power. Costs followed the event.