In the United Kingdom when a person dies intestate the Administration of Estates Act 1925, prioritises and creates a hierarchy of beneficiaries who will inherit the estate.
Similarly, the Non-Contentious Probate Rules 1987 (“the Rules”) provides a hierarchy list for those able to obtain Letters of Administration.
In Kelly-Lambo v Lambo [2022] EWHC 2672 (Ch), two applicants claiming to be the deceased’s spouse applied for letters of administration; in England and Wales, it is illegal under the Matrimonial Causes Act 1973 to be married to more than one person at a time, the Court cannot recognise a deceased individual having more than one spouse.
Rule 22 sets out the priority order in which letters of administration are to be granted on intestacy. Additionally, s 116 of the Senior Courts Act (”the Act”) enables the court to pass over prior claims to a grant.
Polygamy
Where an intestate leaves a surviving spouse and issue, under s 46 of the Administration of Estates Act 1925 the surviving spouse is entitled to a statutory legacy and a life interest in half the residue.
Notably polygamous marriage while illegal in England and Wales are legal in some countries so a person can enter into polygamous marriage outside of England and Wales and then return, albeit the marriage will not be entirely recognised.
In Official Solicitor to the Senior Courts v Yemoh [2010] EWHC 3727 (Ch), the intestate was party to several polygamous marriages under Ghanaian customary law. The court was asked to consider how the intestacy rules worked concerning polygamous marriages. The court held that any spouse who had been lawfully married under the law of the place of an intestate’s domicile was entitled to be recognised in England as a surviving spouse for this purpose.
The matter
In Kelly-Lambo v Lambo [2022] EWHC 2672 (Ch), the deceased died intestate in 2017. The claimant sought an order for a grant of letters of administration in the High Court in February 2021.
The claimant submitted that she married the deceased in Nigeria in 1993 before travelling to live with him in the UK in 2006 and continued to live with him until he died in 2017. The claimant became aware of the defendant in 2008/09 but had never met her. The deceased told her he had been married before but had divorced.
The defendant submitted that she married the deceased in a Muslim ceremony in Nigeria in 1962. While the defendant accepted that the claimant and the deceased had married it was her position they had divorced in 2000. The defendant also submitted that one of her children had served divorce papers upon the claimant.
The defendant produced a decree absolute of divorce to the court which she claimed to have obtained from papers the deceased produced to the Home Office for permission to remain in the United Kingdom. The claimant alleged that the document was a forgery and denied that she and the deceased had been divorced.
The decision
From the evidence submitted by the parties, the court held that the claimant was living with the deceased as his wife at the date of his death and can therefore be considered a surviving spouse who is entitled to a grant of letters of administration under r 22.
The court then turned to the defendants standing; was she too a surviving spouse? The court held it turned on a 60-year-old memory; with 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 confirming the validity of the marriage.
The issue to be resolved by the High Court was whether a grant of letters of administration should be made to the defendant alongside the claimant. Having regard to the evidence, the court considered it both just and expedient to appoint the claimant as administrator under s 116 of the Act, and pass over any claims that the defendant may have concerning the issue of a grant.