UK: How Long Is Too Long? Reversing An Order 10 Years After Death.

Last Updated: 11 October 2017
Article by Paul Hewitt and Richard Walker
Reversing a 1975 Act award, 10 years after death

Miss Deeley had lived with her partner Peter Harding for over 40 years at Mr Harding's property, 87 Beckenham Lane. They never married.

Mr Harding died almost 10 years ago on 11 August 2008. It was believed he died intestate. That belief, that he left no Will, and thus had made no provision for Miss Deeley, endured for almost 10 years.

Because Miss Deeley and Mr Harding had never married the intestacy rules make no provision for her. His intestacy meant a number of Mr Harding's cousins inherited his estate instead. Miss Deeley therefore brought a 1975 Act claim seeking financial provision. Those who lived together in the same household 'as man and wife' for at least two years immediately prior to death are able to bring a claim for reasonable provision from their deceased partner's estate as cohabitee.

Even if she did not qualify as a cohabitee, Miss Deeley also had the standing to claim as Mr Harding's dependant.

Background

Miss Deeley was born in 1925 and was 84 when Mr Harding died. They had met in 1946 and became engaged in 1952 but for reasons that are not clear from the evidence they never married. Mr Harding's mother lived at 90 Beckenham Lane until she passed away in 1999 leaving her estate, including 90 Beckenham Lane, to her son. Miss Deeley cared for her and kept house for Mr Harding.

Their home, 87 Beckenham Lane, comprised of a flat with three retail units. Following Mr Harding's death Miss Deeley continued to live there and to collect rent from the retail units. A grant of letters of administration was issued to one of his cousins, Morris John Littlewood, in March 2010. Miss Deeley issued her claim in July 2010.

Mr Littlewood was first defendant. At a directions hearing in August 2010 two further cousins were appointed to represent all the intestacy beneficiaries as second and third defendants.

Mr Harding had taken out a grant of probate of his mother's estate. However, he appears not to have made any progress in administering it and 90 Beckenham Lane remained registered in his mother's name. Mr Littlewood therefore applied for a grant de bonis non to enable him to deal with that property.

The position advanced by the second and third defendants was, broadly, that Miss Deeley should be able to live in 87 Beckenham Lane for the remainder of her life.

In her own evidence Miss Deeley said that she enjoyed collecting rents from the retail units in order to socialise with the tenants. She had filed three detailed witness statements before a mediation at the end of March 2011.

1975 Act cohabitee decisions

In Negus v Bahouse 2008 a cohabitee of just eight years was awarded a capital sum of £200,000 outright in order to provide her with 'long leasehold or freehold property'.

In Webster v Webster 2008 a longstanding cohabitee was awarded the title to his home free of mortgage (the Judge having performed a cross check with a Duxbury calculation, which establishes the value of a one-off lump sum that is equivalent to periodical payments a dependant could expect to receive).

Agreement and order

The upshot of the mediation was an agreement that Miss Deeley have a life interest in 87 Beckenham Road and £25,000 towards repair and replacement costs.

The agreement was embodied in a 19 April 2011 Consent Order. The Order recited the conclusion that Mr Harding's intestacy did not make reasonable financial provision for Miss Deeley and provided for the following:

1. a life interest in 87 Beckenham Lane for Miss Deeley (a declaration of trust was annexed to the Order);

2. payment by Mr Harding's estate for repairs and replacements at the property at 87 Beckenham Lane to a maximum value of £25,000; and

3. payment of all parties' costs from the estate.

The Trust was established on June 2011. Miss Deeley occupied 87 Beckenham Lane until her death in September 2014 at the age of 88.

In contrast to Mr Harding, Miss Deeley died testate, albeit with a very short homemade Will from a law pack precedent. She appointed executors and gifted the residue of her estate equally to five charities, British Red Cross, The Brooke, PDSA, RSPCA, and World Wildlife Fund.

Miss Deeley made that Will only six days before she passed away. Following her death a search of 87 Beckenham Lane unearthed a Will made by Mr Harding as long ago as November 1973. Mr Harding's Will provided inter alia for Miss Deeley to receive 87 Beckenham Lane outright. It was clear he had always intended his partner to get the bulk of his estate.

Miss Deeley's executors obtained an opinion from Counsel that left them pessimistic about their options for correcting the situation. In normal circumstances an appeal should be brought within 21 days. Here almost 6 years had passed. However, the charities took independent advice (from Withers and Richard Wilson QC) and determined that an appeal against the Order was possible and appropriate.

In March 2016, Miss Deeley's personal representatives assigned to the charities the right to advance the appeal.

The application for leave to appeal out of time was issued the following week. The charities applied for leave to appeal on the basis that the agreement between the parties embodied in the Order was reached because of a common mistake and was accordingly void. Contrary to the evidence before the Court, and what the parties believed, Mr Harding did not die intestate but left a valid last Will.

In October 2016 Morris J gave Judgment for the charities. He granted permission to appeal out of time on the basis that an appeal had a real prospect of success on the grounds of common mistake.

Common mistake

The test for common mistake is set out at paragraph 6-015 of Chitty on Contracts.

'Where the mistake is common, that is shared by both parties, there is consensus ad idem, that the law may nullify this consent if the parties are mistaken as to some fact or point of law which lies at the basis of the contract. In summary if: (i) the parties have entered a contract under a shared and self-induced mistake as to the facts or law affecting the contract; (ii) under the expressed or implied terms of the contract neither party is treated as taking the risk of a situation being as it really is; (iii) neither party was responsible for or should have known of the true state of affairs; and (iv) the mistake is so fundamental that it makes the 'contractual adventure' impossible, or makes performance essentially different to what the parties anticipated, the contract would be void.'

In the leading case of Bell v Lever Bros 1932 an employer paid compensation to two employees following termination of their service contracts believing they were entitled. It subsequently transpired that the employees had committed serious breaches of duty and the employer argued that the compensation payments were made as a result of a common mistake.

The Appeal

Unlike Bell v Lever Bros the cousins were entirely innocent. However, when the settlement was reached (and the original Order made) everyone mistakenly believed that Miss Deeley had no right to 87 Beckenham Lane.

The perceived lack of entitlement was the very basis of the agreement reached between the parties. Had the parties been aware of the true position, there would have been no claim by Miss Deeley, let alone any settlement of it. Rather than improving her situation, the agreement actually made it worse.

The Judge did face one difficulty. The missing Will had remained at the very property in which Miss Deeley had lived for so many years, including for several years following Mr Harding's death. So arguably Miss Deeley had been the architect of her own misfortune. Counsel for the charities submitted that the obvious inference to be drawn from Miss Deeley bringing proceedings and compromising them on terms which gave her less favourable provision was that Mr Harding had never mentioned the Will's existence to her.

The Respondents did not appear at the appeal hearing and were not represented, although Mr Littlewood attended Court. By then, all of the cousins had agreed that Mr Harding's Will should be respected.

Morris J concluded that the appeal must succeed and the 2011 Order be set aside, save as to the provision for costs to come out of Mr Harding's estate. That provision had long since been complied with and it would be pointless to set it aside.

Conclusion

For several years Mr Harding's cousins had assumed they would inherit 87 Beckenham Road on Miss Deeley's death. However, when the true situation was explained to them over the course of the appeal, all of them very generously agreed not to oppose the appeal. Although unusual, it is an interesting example of the doctrine of mistake putting right an evident error in the context of 1975 Act claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Paul Hewitt
Richard Walker
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions