Death is, Unfortunately, The End

Emma Louise Green, The Wilkes Partnership Solicitors Birmingham, Solihull, Birmingham, Contentious Probate

In this article, we explore the recent case of Roberts v Fresco [2017] EWHC 283 (Ch) and the impact of the decision on individuals seeking to bring a challenge to an estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.

Mr and Mrs Milbour married in 1973.  It was a second marriage for both of them.  Mr Milbour had two children and one granddaughter.  Mrs Milbour had one daughter.  They did not have any children together.  Mrs Milbour was a wealthy lady and when she passed away in January 2014, her estate had a net value of £16,776,054.  By a 1994 Will, she only left her husband £150,000 and an interest in the income of £75,000.  Mr Milbour himself sadly passed away in October 2014.

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of applicant to bring a claim against an estate for reasonable financial provision if they feel they have been inadequately provided for on someone’s death.  Spouses can bring such a claim and it is established law that one of the key factors to consider when dealing with a spousal claim under this Act is what the surviving spouse would have received if the marriage had ended in divorce rather than death.  Generally, in a divorce, the starting point is an equal division of the assets.

Emma-Louise Green comments “Had he lived and brought a claim, Mr Milbour may have obtained an order that he should receive 50% of his wife’s estate or at least a significant percentage of it.  Unfortunately, he died before he advanced such a claim.  The question before the Court was whether Mr Milbour’s claim ended at his death or whether it could be advanced by the beneficiaries of his estate.  As the beneficiaries of his estate, they presumably wanted to substantially increase the value of Mr Milbour’s estate from the £320,000 it was at the date of his death to many millions.”

The Court reaffirmed previous authorities dealing with this point and confirmed that a claim under the 1975 Act is personal to the claimant and does not survive the claimant’s death.

On this judgment, Emma-Louise Green concludes “I think that this decision has to be correct.  The purpose of the 1975 Act is to consider whether a particular person has been left reasonable financial provision and, if not, what that particular person should receive.  A Court will consider the detail of the claimant’s life such as their income, expenditure and life expectancy and compare it to the life they had during the deceased’s lifetime in coming to its conclusion.  The purpose of the 1975 Act is not to look at who the beneficiaries of the claimant’s estate are or could be in the future and how they may be affected by any award made.”

Despite Bob Dylan’s repeated protestations that death is not the end, in the case of claims being advanced under the Inheritance (Provision for Family and Dependents) Act 1975, Roberts v Fresco is another decision that confirms that, actually, it is.

The Contentious Probate Team at The Wilkes Partnership regularly advises individuals in both bringing and defending claims pursuant to the Inheritance (Provision for Family and Dependents) Act 1975.

The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with an uncertain or ambiguous Will.  If you wish to discuss any aspect of Will drafting or interpretation issues please get in touch with Kevin Lynch on 0121 233 4333 or via email on klynch@wilkes.co.uk.