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Dingmar v Dingmar [2006] EWCA Civ 942

Wife’s appeal in connection with an order under section 9 of the Inheritance (Provision for Family and Dependants) Act 1975 allowed.

Dingmar v Dingmar [2006] EWCA Civ 942

Court of Appeal: Ward, Jacob and Lloyd LJJ (12 July 2006)

Summary
Wife's appeal in connection with an order under section 9 of the Inheritance (Provision for Family and Dependants) Act 1975 allowed.

Background
The claimant in these proceedings was the second wife of the deceased, who died in 1997; they had married in 1985, and lived in a house which was owned, as beneficial joint tenants, by the deceased and his son from his first marriage, who was the defendant in this case.

In 2004, the claimant issued proceedings against the defendant under section 9 of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), seeking an order that the deceased's severable share of the house be treated as an asset of his net estate; and, in July 2005, she obtained a grant of letters of administration to the estate. No grant of representation had been made at the time of the death, as the deceased had no assets of any worthwhile value in his estate, and he died intestate.

At the time of the trial in September 2005, it was agreed that the house was worth £95,000, compared to a value of £40,000 at the date of death. The judge awarded the claimant half of the value of the house as at the date of death (ie £20,000), and made it clear that, if he had been able to do so, he would have awarded her a half share of the house, or at least a share of the house corresponding to the proportion that half the value at death bore to the whole current value, in effect 21 per cent. The question on this appeal was whether he could have made one or other of those orders.

Judgment
Held, allowing the appeal (Lloyd LJ dissenting), that section 9 of the 1975 Act should be construed to allow the full extent of the former severable share, unlimited as to value, to be treated as part of the net estate.

The court declared that, for the section 9 exercise, the only rational course of action was to take the proportionate share of the property which would have belonged to the deceased if there had been severance of joint ownership (in this case, one half), and treat that proportion of the property as the share of the property which the court was empowered to treat as part of the net estate. It also considered that any alternative solution that favoured the other co-owners if property values went up, but penalised the applicant if they went down, would be so irrational that it could not be what Parliament had intended.

In a dissenting judgment, Lloyd LJ considered that, on an analysis of the relevant provisions of the 1975 Act, it was necessary to know what the value of the net estate was, expressed in terms of an absolute amount and not as a proportionate share. Accordingly, he felt unable to award a half share of the property to the claimant, although he identified a means by which the judge could have declared that the defendant held the property on trust for himself and the claimant as beneficial tenants in common in the proportion 79:21, so that a 21 per cent share of the property would be treated as part of the net estate.

The court recognised that the difficulty in this case arose by virtue of the length of time that elapsed between the relevant death and the trial; ultimately, it concluded that it had the power to transfer one half of the property to the claimant, and so ordered.

Read the full text of the judgment