![FA-2024-000237 - [2025] EWHC 727 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Application of the law
Application of the law
The wife argues that she should have permission to bring this application out of time because it was not until the end of June that she knew probate had already been granted at the time of HHJ Spinks’s decision; that she was a litigant in person at that time; and that the delay was not long.
The husband says that the grant of probate is not material; that I should attach no weight to the fact that the wife was (by choice) a litigant in person; and the delay from the end of June to the 18 August is of itself more than 21 days.
I do give permission to bring the application out of time. I attach no weight to the wife being a litigant in person. I accept the husband’s account that he did not know that probate had been granted. I agree that in the ultimate analysis the timing of the grant of probate has very little materiality, but the references to the timing of probate in paragraphs 31 and 41 (c) of the decision of HHJ Spinks do support the wife’s case that she thought that her discovery made a difference.
Bearing in mind the factors in rule 4.6 (1) FPR 2010 I reach the conclusion that the delay is not such to outweigh the interests of the administration of justice and that there is an explanation for the delay.
The argument over whether or not the wife should have permission to bring her appeal is logically strained by the circumstances of this rolled up hearing. Almost inevitably I have reached a view on the merits of the appeal while being asked to determine whether or not the appeal has a realistic prospect of success.
I shall for this preliminary purpose look at the strength of the wife’s case absent the forceful expounding of the decision of HHJ Spinks that I have now had from the husband. In short, the wife’s case is that:
It is obviously unfair in a needs case for the wife to take a lesser share in the proceeds of sale of the matrimonial home than the husband where, as here, the husband has just received a substantial inheritance.
Notwithstanding the way in which the husband’s father’s will is set up the court can expect the family will find a way to enable him to benefit from the inheritance.
The court has fallen into procedural error by not allowing the wife to challenge the husband’s route to obtain a benefit from his inheritance.
In her skeleton argument (paragraph 11) Ms Allwood put the husband’s interest in his inheritance at approximately £1.1 million and pointed out (paragraph 13) that under the order he was to receive £140,000 more than the wife on the split of the proceeds of sale of the matrimonial home.
Taken on its own that would suggest that there should be permission to appeal. I acknowledge that a reading of the decision of HHJ Spinks, even before reading the submissions of Ms Bundell suggests that the path to success will not be straightforward but I consider that there is on the face of the application sufficient reason to think that there is a realistic prospect of success. So, I grant permission to appeal.
I turn then to the appeal itself and I must at this stage give the other side of the arguments.
The judge has given a careful reasoned account of his decision-making process. He starts in paragraph 3 by recording the important aspects of the wife’s case at trial: (i) the husband had undisclosed resources, (ii) the husband’s family and his father in particular would help him if her were in a position of real need, and (iii) that he was likely to receive a significant inheritance on his father’s death (who was aged 90).
He then sets out the law, as noted above.
He turns then to consider the application of the law to the facts of this case. At paragraph 37 he deals with three specific allegations:
Non-disclosure: he concludes that his finding of an ‘absence of undisclosed assets’ is strengthened by the new material. The new material refers to the husband as being in need and contains an email from his father requiring the executors to ‘be very careful to have full control of [the husband’s] portion of my will. Making sure that he cannot blow the money like he has done with Mama’s and the proceeds of the sale of his house’. (That, I record, is an earlier property, not the matrimonial home.)
The asserted willingness of the husband’s family to step in and help him: he concludes the new material does not support that. It shows relations were ‘somewhat strained’ and there is no ‘unlimited munificence’ as asserted by the wife.
The husband’s knowledge of his inheritance prospects: the judge concludes it is not possible to develop those findings that he had previously made in any way and says that he dealt with ‘the case on the basis that it was more likely than not that H would receive (or have to look to obtain) family assistance in due course given the scale of his indebtedness and his need for housing’.
The judge then turns to consider the change to the financial circumstance of the husband flowing from his inheritance at paragraph 41. The judge reasons as follows, and I comment in italics:
The husband is not likely to receive anything at all this year. That is in 2024.
He will receive around £43,500 from his father’s nil rate tax band. This figure is dependent on other gifts made by his father and furniture in which the husband will have an interest but his stepmother will retain. It is a reasonable estimate. It is possible that it was received earlier than the judge estimated because probate was granted faster, but his estimate as to time was reasonable on the information before him. In any event this sum is consumed by the husband’s outstanding costs, especially those from the Barrell application which despite winning he did not receive given he would have this extra money. Its early receipt will make no difference to this decision.
Beyond this, the judge says, the picture is uncertain. The figures are in a wide range from nothing to several hundred thousand pounds. This is subject to probate, where the H’s stepmother is going to live, and there being no challenge to H’s father’s will. The husband’s inheritance was by way of a will trust, as to 25% with his siblings, and subject to a life interest in the assets by his stepmother. There is a possibility of the stepmother’s daughter (by a different relationship) buying out the father’s estate’s interest in the property the father had with stepmother, but there was also the problem that the running of the property would substantially reduce the other assets. There was to be borne in mind the substantial other assets of the stepmother which might have lightened the load.
As and when H does receive funds, it appears clear that they are to be put in trust. This is a reasonable assessment in the light of the information disclosed, including the emails from the father and the letter of wishes.
The judge says at paragraph 42 that he cannot just endorse the wife’s open offer because the husband will be left needing to find £70,000 in the next year, which given his situation of real need is problematic.
The judge sets out at paragraph 43 that if he grants the application, and embarks on a re-determination he will be involving the parties in additional costs, delay, and allotting additional court resources to this case. He says that the benefits of doing so at this stage are uncertain at best.
The judge then considers at paragraph 44 issues as to overall fairness. Each side had made allegations of family wealth on the other side, beyond the fact that the husband’s father had now died the position remains uncertain. How, he asks, could he provide fairly for a situation whereby the wife will inherit in due course?
The judge considers that the welfare of the children needs to be considered at paragraph 45, which is appropriate given the overriding objective here being applied is that under the FPR. And he distinguishes this case at paragraph 47 from the Barder application in the case of Critchell where the needs issue was much more acute.
It is for these reasons that the judge rejects the Barrell application. In essence, this analysis can withstand Ms Allwood’s criticism of it. The judge has rightly considered that this is not simply a husband inheriting over £1m and still wanting a greater share of the matrimonial resources as if he did not have that £1m. It is a husband who can hope with good cause for assistance over time from what was his father’s money and is now held in trust. There is force in Ms Allwood’s criticism that in normal circumstances one would expect to be able to question the reality of the situation and argue that money might come by advancement from the trust sooner, or the trust might choose to assist in buying a property. However, there is nothing outside the bounds of judicial discretion in HHJ Spinks saying that in these circumstances, i.e. after judgment, that level of enquiry into what the trustees and estate might or might not do is not appropriate.
I reach that conclusion for the following reasons:
The judge recorded that there had already been substantial cross examination on the subject of family support.
The judge recorded that he had in the original decision already factored in support from his father being available to the husband.
The judge had expressed horror as to the level of costs already expended in his original decision, a further enquiry would cost more.
The judge worked for the purposes of the Barrell decision on the information from the probate lawyers, one of whom would be a trustee. In circumstances where there had been a trial already it was a matter for the judge whether he considered it appropriate to open up matters again for further enquiry, including (probably) the cross examination of that lawyer.
Given the manner in which HHJ Spinks has reasoned the exercise of his discretion in favouring finality over re-opening of the case in these circumstances, it is not for me to interfere with that exercise. There may be occasions when the exercise is irrational or takes into account matters it should not or fails to take into account matters it should. This is not such an occasion. And, I must remind myself that HHJ Spinks was the trial judge.
I will turn briefly to the filed Grounds of Appeal to pick up details not dealt with in the above analysis.
Ground 1
The only additional point to deal with here is the argument that the judge placed great weight on the belief probate would take a significant period of time to be granted. He did, think it would take longer than it did, but that was not a point on which great weight was placed. It was a factor which he considered would slow down the first payment.
Ground 2
The judge did not name interim trust payments as a way the husband might have received money, but that was one of the points that would have been considered on the re-opening which he considered and rejected.
Ground 3
The judge did not expressly consider a partial reconsideration, but that could only arise by a reopening of the decision. Either he holds to his original decision, or he changes it. Child maintenance (including applications for school fees) does of course remain open regardless of this decision.
Ground 4
The judge did not apply an ‘exceptional’ threshold.
Ground 5
The judge it is said misinterpreted findings as to the husband’s credibility and financial situation. He did not. He did trust what the probate solicitors told him but that is not a reason to allow this appeal.
Ground 6
The ‘late; disclosure of the estate summary and financial disclosure did not give rise to procedural irregularity. The disclosure was before the submissions from wife’s counsel and there was no request for more time. Indeed, there was an agreement that the judge could deal with the matter on paper.