Cindylee Cockell v Natalie Fong Cockell & Anor

Section 9 of the Inheritance (Provision for Family and Dependants) Act 1975 is an exceptional power. It permits a joint tenancy to be treated as severed only to facilitate reasonable financial provision and only where doing so is just in all the circumstances.

Particular weight must be given to the position of the surviving co-owner. Where spouses jointly acquired a home through their shared efforts, and the survivor owed no obligation to the applicant, depriving the survivor of vested property will ordinarily require compelling circumstances.

A claim under the 1975 Act proceeds in two stages: whether the existing provision was unreasonable, and, only if so, what provision would be reasonable. The court has no general power to redistribute an estate merely because another disposition might appear preferable.

The claimant, an adult daughter of the deceased from an earlier relationship, sought reasonable financial provision from his estate under section 1(1)(c) of the Inheritance (Provision for Family and Dependants) Act 1975.

The deceased had left his estate to his wife. The court found that the matrimonial home had been held beneficially as a joint tenancy, so that it passed to the wife by survivorship and did not form part of the estate. The claimant nevertheless sought relief under section 9, contending that the deceased’s severable share should be treated as part of the net estate.

The central issues were whether section 9 should be exercised and, alternatively, whether leaving the whole estate to the wife constituted a failure to make reasonable financial provision for the claimant.

1. Claim dismissed. No order was made under section 9 of the Inheritance (Provision for Family and Dependants) Act 1975, and there was no order as to costs.
2. Section 9 contains two preconditions. The order must facilitate provision in one of the forms specified in section 2, and its making must be just in all the circumstances. The first condition requires the court to conclude that the existing provision, or absence of provision, was unreasonable before the joint tenancy can be treated as severed.
3. The power substantially affects the surviving co-owner by transferring up to one half of vested property to the deceased’s estate. Justice therefore requires particular regard to the co-owner’s position. The power may be appropriate where the deceased transferred or purchased property in joint names in circumstances involving a gift or an attempt to remove value from the estate. It was not just here, where both spouses had worked to acquire their home, intended it to pass to the survivor, and the survivor owed the claimant no obligation.
4. The court also considered the alternative assumption that the deceased had owned an equal share as tenant in common. Applying the two-stage approach described in Re Coventry [1980] Ch 460 and reinforced in Ilott v The Blue Cross and Others [2017] UKSC 17, the court first asked whether the disposition was unreasonable. Only if that threshold were met would it consider what provision should be made. The court had no general discretion to redistribute the estate.
5. Having regard to the wife’s age, disability, health, limited income, financial needs, long marriage and the nature of the assumed estate, it was reasonable for the deceased to leave everything to her. The claimant’s status as an adult daughter, her relationship with the deceased, her modest means and disappointed expectations did not make the disposition unreasonable. The alternative analysis therefore also failed.