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30 AUG 2011

FAMILY PROVISION: Smith v Smith [2011] EWHC 2133 (Ch)

(Chancery Division; Mann J; 8 July 2011)

The estate, including property, was worth about £500,000. The 12 year marriage was in difficulties. The Russian wife had signed a statutory declaration stating that she was no longer in a relationship and that she considered herself separated. She returned to Russia. The deceased's first will had left most of his property to the wife (she said in implementation of promise that he would do so if she married him and looked after him). While living in Russia the wife returned occasionally, and began but never pursued divorce proceedings. While the wife was in Russia the deceased made a second will leaving his property to other relatives, with nothing to the wife. On death the wife challenged the will on the basis that the deceased had lacked capacity when it was made. She also made an application under the  Inheritance Act 1975.  On an interim basis the wife was seeking an order allowing her to reside in the husband's property and £25,000 as interim relief under s 5.  Case management provided for cross-examination of wife on her evidence. The wife's case did not establish incapacity and she was very likely to lose her probate case. 

There was more than a faintly arguable Inheritance Act case but to grant interim relief under s 5 required that the claimant be ‘in immediate need of financial assistance'.  The need was not established. It behoved an applicant under s 5 to proffer to the court and to the other side convincing evidence of the case of immediate financial need. Mere statements of fact not were necessarily going to be sufficient, and certainly not so on these facts. There was an impression that the wife was not disclosing material assets and material income and it was not clear why she needed the house as she was living in Russia and only visiting England. It was not appropriate to allow her to reside in a property merely to avoid hotel bills for very brief visits.

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