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Neutral Citation Number:
Reported Number:	R(IS) 1 01
File Number:	CIS 256 1998
Appellant:	Wilkinson v. Chief Adjudication Officer
Respondent:
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	24/03/2000
Date Added:	26/03/2002
Main Category:	Capital
Main Subcategory:	Joint holdings
Secondary Category:
Secondary Subcategory:
Notes:	Capital - share in jointly owned testamentary gift of property occupied by other joint owner - whether share had a "current market value" In August 1995, while the appellant was in receipt of income support, her mother died. By her will, the mother left her house to her children (the appellant and her brother) jointly. The house was not sold and remained empty until January 1997 when the brother moved into the property (with the consent of the appellant). The appellant's interest in the house was not disclosed to the Department of Social Security until April 1997. In May 1997 the adjudication officer valued the appellant's share of the house as being worth at least £8,000. Her benefit entitlement was therefore reviewed, and withdrawn on the basis that her capital exceeded the limit prescribed in regulation 45 of the Income Support (General) Regulations 1987. This had been so since the date on which the mother's will had been admitted into probate (20 September 1995) and it had become possible for her interest in the property to be realised. Before the tribunal, the appellant argued inter alia that her mother's wish had been that the house be used as a home for the brother and that this wish overrode the terms of the will. The tribunal upheld the adjudication officer's decision. The appellant appealed to the Commissioner who dismissed her appeal. The appellant appealed to the Court of Appeal, contending that given the occupation of her brother, her share of the house was worthless throughout the relevant period for which she had received income support. Further, she was not entitled to insist on a sale of the house with vacant possession. Held, dismissing the appeal (Evans LJ dissenting), that: 1. (per Mummery and Potter LJJ) under the will the appellant had inherited a half share in the house and as a beneficiary she was entitled to have the assets of the estate administered in accordance with the law and the terms of the will; 2. (per Mummery and Potter LJJ) the appellant could have obtained an order for the sale of the house with vacant possession if her brother was unwilling to buy her share or refused to agree to a sale. It was not a case like CAO v. Palfrey (R(IS) 26/95) where a property was acquired by joint owners for a collateral purpose which would be defeated if one of those acquiring the property were to insist on a sale while that purpose was still subsisting. In this case, an order for sale would give effect to the testamentary purpose of the testatrix. Neither the brother's share in the house, nor his rights in it, were any greater than those of the appellant either before or after he went into occupation; 3. (per Potter LJ) where a claimant is entitled to a half share in a dwelling house, the proper starting point for the valuation of that share is half the market value of the house with vacant possession; the value of the half-interest being discounted in respect of any factors materially affecting the ability of the claimant to market the dwelling house offering vacant possession at completion. In this case there was no evidence that the brother would have taken active steps, either before or after he went into possession, to resist a sale with vacant possession. Even if, after he had gone into possession, he had taken such steps, there were no good grounds on which he could resist the sale. That being so, while any valuation of the appellant's half share might in principle have required some discount on the basis that proceedings under section 30 of the Law of Property Act 1925 might have been necessary before the interest could be realised, such discount would be of an insubstantial nature.
Decision(s) to Download:	is1_01.doc