In the recent case of Kelly-Lambo V Lambo , the court had to determine who, out of two women both claiming to be the surviving spouse of the deceased who had died intestate, should be awarded the grant of letters of administration.
Mr James Olayiwola Akanbi Lambo (“James”) died intestate in 2017.
The claimant, Mrs Patricia Lambo (“Patricia”) commenced proceedings in the High Court in February 2021 seeking an order that she be a grant of letters of administration be issued to her.
Patricia contended that she married James in Nigeria in 1993 before travelling to live with him in the UK in 2006. When she came to the UK she began living with James and did so until his death in 2017. Patricia became aware of the defendant in 2008/2009 but had never met her. She asserted that James had told her he had been married before but said that they had divorced.
The defendant, Mrs Esther Lambo (“Esther”), claimed to have married James in a Muslim ceremony in Nigeria in 1962, some 55 years before his death. She accepted that Patricia and James had married but it was her position that they had divorced in 2000. Esther produced a decree absolute of divorce to the court which she claimed to have obtained from James’ papers that he had produced to the Home Office for the purposes of his permission to remain in the United Kingdom. Patricia alleged that the document was a forgery and denied that she and James had been divorced. Esther also asserted that one of her children had served divorce papers upon Patricia.
When a person dies, someone needs to deal with their estate. If the deceased had made a will, then an executor would be named in the will and would take responsibility for dealing with the estate and applying for a grant of probate. If, however, the deceased did not make a will, then someone needs to apply for a grant of letters of administration. In the absence of a will giving instructions on how to divide an estate and who should be named as executor, the rules of intestacy must be followed.
Rule 22 of the Non-Contentious Probate Rules 1987 (“the Rules”) sets out the priority order in which letters of administration are to be granted on intestacy. So far as is relevant, Rule 22 provides:
“Order of priority for grant in case of intestacy
22(1) Where the deceased died on or after 1 January 1926, wholly intestate, the person or persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following classes in order of priority, namely:
(a) The surviving husband or wife;
(b) The children of the deceased and the issue of any deceased child who died before the deceased;
(c) The father and mother of the deceased…”
In addition, Section 116 of the Senior Courts Act 1981 (“the Act”) provides power to the court to pass over prior claims to a grant. Section 116 provides:
“(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit.”
The court also considered it necessary in this case to consider the principles that might give rise to a presumption of a state of marriage. The court noted that such presumption could either be based on cohabitation and reputation or ceremony followed by cohabitation. The court found that the latter presumption was relevant to the matters in this case.
What did the court do?
The court heard evidence from Patricia and Esther as well as James’ children. Various other independent witnesses were also called by both parties. As the evidence developed, it appeared to the court that the fact Patricia was living with James up to the date of his death was hardly contested. To the extent that it was, the court made a finding that she was living with him as his wife at the date of his death.
Having regard to this, the court held that it must follow that Patricia can be characterised as a surviving spouse for the purposes of the Rules and applying Rule 22 that she was therefore entitled to a grant of letters of administration.
The court therefore then turned to deal with Esther’s standing. The first question to be answered was whether she too was a surviving spouse. The court held that the evidence on this was inconclusive and “open to real doubt”. It turned on a memory from 60 years ago, there being no evidence of an original marriage certificate, only a certified copy with no evidence of how it came to be certified and no evidence from a Nigerian lawyer which confirmed the validity of the marriage.
The court accepted that the proposition that as a matter of law the validity of a marriage will be presumed whether there is evidence that the parties have undertaken a ceremony and subsequently cohabited but questioned whether there was sufficient evidence of the same. Furthermore, the court held that the answer to this question was not in any event determinative of the claims in the case, difficult though it would undoubtedly have been on the evidence to arrive at an answer.
In the court’s judgment, the issue to be resolved was whether a grant of letters of administration should be made to Esther alongside Patricia. Having regard to the evidence, the court did not consider that a joint grant should be issued.
In all the circumstances, the court made an order that the grant of letters of administration should be issued to Patricia in her sole name. To the extent that it may have been considered that Esther was by virtue of a spousal status, which the court had not recognised, entitled to a joint grant, the court considered it both just and expedient to appoint some other person, i.e. Patricia as administrator of the estate pursuant to the provisions of Section 116 of the Act, such as to pass over any claims that Esther may have in relation to the issue of a grant.
Ally Tow is a Senior Associate at Boyes Turner LLP