Windram v. Windram [2009] ScotSC 43 (21 October 2009)

Windram v. Windram [2009] ScotSC 43 (21 October 2009)

The pursuer was a cohabitant within the statutory meaning, had devoted herself to the relationship and family, and was left financially vulnerable by the deceased's intestacy. The court exercised its discretion to make provision for her, awarding a capital sum and transfer of the family home and its contents, as this struck a fair balance between her interests and those of the children, and did not exceed the maximum a spouse would have received.

Citation
[2009] ScotSC 43
Parties
Pursuer: Mandy Mitchell Windram; Defender: Mandy Mitchell Windram (as executor-dative qua guardian in the Estate of the late William Somers Giacopazzi); Third Party: Alison Marshall, Solicitor, Curator ad litem to the children S and G
Jurisdiction
Scotland
Judgment Date
21 October 2009
Procedural Posture
Application for Provision on Intestacy by Cohabitant / Judgment After Proof
Outcome
Application sustained in part; orders made in favour of pursuer.
Legal Topics
Cohabitation, Intestacy, Provision for Surviving Cohabitant, Family Law (scotland) Act 2006 S29, Succession (scotland) Act 1964
Family Law Succession Law Cohabitation Intestacy Provision for Surviving Cohabitant Family Law (scotland) Act 2006 S29 Succession (scotland) Act 1964

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Parties

Mandy Mitchell Windram

Pursuer

Mandy Mitchell Windram (as executor-dative qua guardian in the Estate of the late William Somers Giacopazzi)

Defender

Alison Marshall, Solicitor, Curator ad litem to the children S and G

Third Party

Procedural Posture

Application for Provision on Intestacy by Cohabitant / Judgment After Proof

Legal Issues

  1. 1 Whether the pursuer, as surviving cohabitant, is entitled to provision from the deceased's intestate estate under section 29 of the Family Law (Scotland) Act 2006
  2. 2 What orders, if any, should be made in favour of the pursuer, having regard to the statutory criteria

Ratio Decidendi

The pursuer was a cohabitant within the statutory meaning, had devoted herself to the relationship and family, and was left financially vulnerable by the deceased's intestacy. The court exercised its discretion to make provision for her, awarding a capital sum and transfer of the family home and its contents, as this struck a fair balance between her interests and those of the children, and did not exceed the maximum a spouse would have received.

Court Disposition

Application sustained in part; orders made in favour of pursuer.

Orders

  • Payment to the pursuer of a capital sum of £34,000 from the deceased's estate.
  • Transfer to the pursuer of the deceased's interest in the heritable property at 20 Johns Road, Eyemouth, subject to the secured loan by Bank of Scotland.