Rupert Coe looks at the implications of Re Nandakopan (deceased): Nandakopan v Nandakopan.

Judgment in Re Nandakopan (deceased): Nandakopan v Nandakopan was handed down by HHJ Monty KC, sitting in the County Court at Central London, on 22 September 2023.  The case involved a claim by the Deceased’s ex-wife for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) from the Deceased’s estate, in circumstances where the Deceased had died just six weeks after the decree absolute, and prior to any financial settlement being reached on divorce.

The Claimant relied on s.14 of the Act (“Provision as to cases where no financial relief was granted in divorce proceedings etc.”) for the Court to treat her as if she had remained married to the Deceased until his death, thereby opening up the possibility of an award pursuant to the more generous wording of s.1(2)(a), rather than s.1(2)(b) of the Act.  In other words, she sought an award for “financial provision” which was not linked to her maintenance requirements.

The Claimant and the Deceased had been married for nearly 27 years.  They had one child together, a daughter, who was the Defendant to the claim.  As the Claimant and the Deceased were divorced at the time of his death, and the Deceased died intestate, the Defendant (aged 29 at the time of the trial) inherited his entire estate.  In addition, in the six years before his death, the Deceased had transferred some valuable assets to the Defendant including re-registering a property in London into his and the Defendant’s joint names and making cash transfers to the Defendant.  The Claimant sought to rely on s.10 of the Act (“Dispositions intended to defeat applications for financial provision”) to increase the value of the assets from which an award in her favour could be made.  Prior to trial, she had identified cash transfers of around £50,000 which she said may be made subject to an order under s.10, although at trial this claim was dropped and she focussed only on the property.  In the alternative to a s.10 order, the Claimant sought an order under s.9 of the Act (“Property held on a joint tenancy”) that the Deceased’s half share in the property should be treated as part of his net estate, rather than passing to the Defendant by survivorship.

The claim, therefore, had several interesting features.  Reported cases considering ss.9 and 10 are relatively rare.  In Nandakopan the claim was dismissed in its entirety, including the s.9 and s.10 applications.  In respect of s.10, importantly, the Court was not satisfied on the balance of probabilities that it was a material intention of the Deceased to defeat a claim under the Act when he re-registered the property into his and the Defendant’s joint names.  The transaction was to benefit the Defendant, not to deprive the Claimant.

All cases under the Act, of course, turn on their own facts.  In many cases, a widow (or ex-wife able to claim as a widow) who inherits nothing on the death of her husband, might be expected to have a strong claim.  But that was not how matters worked out for Mrs Nandakopan.  Despite the long marriage, she and the Deceased had largely kept their assets separate.  For many years, despite living in the same house, they lived separate lives, with the Claimant sleeping in a downstairs room.  The Claimant owned her own assets in Sri Lanka, the significance of which she was found to have attempted to “play down”, whereas the London property was for many years in the Deceased’s sole name – and the Claimant did not claim a beneficial interest in it.  The Claimant had the prospect of inheriting further property from her own mother in Sri Lanka.  Significantly, the Court found that the Claimant’s motivation in bringing the claim went “well beyond seeking provision”: it was the fourth set of proceedings in which the Claimant had claimed against the Defendant since 2017, when the Claimant tried for the first time to have the Deceased and the Defendant evicted from the property.  Most of the filings from the earlier proceedings were before the Court, enabling the Judge to find that evidence submitted by the Claimant in those 2017 proceedings was “misleading and intentionally so”.  When the present claim was considered in the round, the Court concluded that it was not unreasonable for the Claimant to receive nothing from the Deceased’s estate.

Rupert Coe acted for the successful Defendant at trial and at various earlier hearings, including the Claimant’s unsuccessful attempt to obtain an interim award pursuant to s.5 of the Act.  That application, which was heard on live evidence in December 2022, was dismissed in January 2023.  Rupert was instructed by Asif Ahmed and Safiye Connor of McCarthy Denning.

For further information please contact Justin Brown.