The intestate’s widow notified her husband’s personal representative that she had elected to exercise her statutory right to the matrimonial home. At first instance, Foster J held that the words ‘in or towards satisfaction’ were only applicable where the value of the entitlement was equal to, or exceeded, the value of the property, and were not applicable in a case where the entitlement would be more than satisfied by the appropriation. In such a case, the surviving spouse had no right of election.
Held: The appeal was allowed. There would be no point or purpose in the words ‘in or towards satisfaction’ they were to be confined to cases where either the value of the entitlement exceeded that of the property, or was exactly equal to it. The effect of the statute was to extend the power of appropriation by an administrator of an intestate’s estate to include a transaction that is partly an appropriation and partly a sale; and, in the light of the apparent policy of the Schedule, this confers a right of election upon the surviving spouse where the value of the property exceeds that of the entitlement but in which case the surviving spouse must make a cash payment to the deceased’s estate equal to the difference.
It is not only permissible but necessary to have regard to cross-headings in statutes.
Templeman LJ said: ‘The effect of the section is that for purposes of Schedule 2 a transaction which in essence is partly appropriation and partly sale becomes an appropriation, and Schedule 2 must be read as if the section included this new hybrid power of appropriation . . The section does not merely confer a new power
on the personal representatives; it directs that the power of appropriation under
section shall include the new power . . the object of that wording is to ensure that when, pursuant to the statute, the surviving spouse requires the personal representative to exercise the power conferred that requirement will include a duty to exercise where appropriate that power as extended.’
Buckley, Templeman and Bridge LJJ
[1980] 1 Ch 275
England and Wales
Cited by:
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.229698
