Do claims under the Inheritance (Provision for Family and Dependants) Act 1975 die with the claimant?

The purpose of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) is to make “reasonable financial provision” for a person in circumstances where either a will, or where there is no will, the rules governing the distribution of a person’s estate known as the “intestacy rules”, fail to do so.

It is widely accepted that a right to make a claim under the Inheritance Act ends with the death of the person who would bring such a claim, such that their heirs cannot then pursue a claim on that person’s behalf.

Indeed, one of the leading texts on claims under the Inheritance Act, Francis on Inheritance Act Claims: Law, Practice and Procedure (2003), states that “The claim does not survive for the benefit of the claimant’s estate under the Law Reform (Miscellaneous Provisions) Act 1934. It, therefore, dies with the claimant.”

Nevertheless, the issue was tested in the recent case of Roberts v Fresco [2017] EWHC 283 (Ch).

Facts

Pauline Milbour died on 5 January 2014, leaving her husband, Leonard Milbour, a legacy of £150,000 and an income in the interest of £75,000, of her circa £17m estate. Mr Milbour died on 20 October 2014. Mr Milbour did not bring a claim under the Inheritance Act in the short period of time between his wife’s and his own deaths. On Mr Milbour’s death, his estate was worth £320,000, including the £150,000 that Mrs Milbour had left him. The matrimonial home did not form part of Mrs Milbour’s estate.

By his will, Mr Milbour left his estate to the claimants. The first claimant was Mr Milbour’s daughter and the second Mr Milbour’s granddaughter (her father, Mr Milbour’s son, having died in 2004). The defendant was Mrs Milbour’s only child.

The claimants therefore issued a claim under the Inheritance Act. The issue before the court related to their application which sought permission:

“to bring the claim under section 1(1)(a) of the 1975 Act against Mrs Milbour’s estate that Mr Milbour did not himself bring before his death in 2014”.

The arguments

The inherent difficulty the claimants faced in bringing the claim was the body of authority that claims under the Inheritance Act, like claims for financial provision in matrimonial proceedings, do not survive the death of the applicant.

The claimants contended that those authorities, namely Whyte v Ticehurst [1986] Fam. 64 and Re Bramwell (Deceased) [1988] 2 FLR 263, were of persuasive authority only and had been incorrectly decided with the reasoning behind the judgments having been superseded by the Human Rights Act 1998. This was on the basis that under Article 1 of Protocol 1, ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession…’.

The claimants also sought to argue that:

• a claim under the Inheritance Act is a cause of action; the Law Reform (Miscellaneous Provisions) Act 1934 (“1934 Act”) did not define “cause of action” and the term should therefore be given the widest possible meaning;
• some actions (for example defamation claims) were expressly said not to survive under the 1934 Act and had Parliament intended to introduce further exceptions it would have done so;
• the Inheritance Act does not itself expressly limit claims to those brought by living persons or prevent the estate of a deceased from bringing a claim; and
• the purpose of the Inheritance Act was to rebalance family affairs on death, in the event that no reasonable financial provision was made.

The judgment

The court held that was no scope for arguing that Article 1 rights were engaged on the basis that Mr Milbour was deceased and his estate was neither a natural or legal person. As such Whyte and Bramwell remained good law.

An analogy was drawn with a claim for financial relief by a spouse under the Matrimonial Causes Act 1973 and comments made in Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 632 on the basis that, had it been intended that a claim under that act should survive for the benefit of the estate of the potential claimant, it would have expressly provided for that.

The court considered that a similar point could be made in respect of claims under the Inheritance Act as they do also omit such a reference.

The specific arguments raised in relation to construction of the Inheritance Act were met with forceful opposition by the defendant who argued that, on its true construction, a claim under the Inheritance Act is not a cause of action at all. The main focus of that argument was based around the “section 3 factors” of the Inheritance Act, on the basis that the court is required under section 3 to determine whether reasonable financial provision was made for the applicant.

Mr Baxter, appearing for the defendants, said specifically that, ‘it is not until the trial judge carries out the section 3 exercise, and determines whether or not reasonable financial provision was made for the applicant, that the applicant has something which could properly be described as a cause of action. Until then, it is a mere hope or contingency’.

Mr Baxter added that it would be impossible for the court to carry out the section 3 exercise as mandated by the Inheritance Act on the facts known to the court at the date of the hearing in the case of a deceased’s estate.

The court agreed.

The analogy with claims under the Matrimonial Causes Act 1973 was considered to be correct and it was held that a potential claim under the Inheritance Act is indeed personal to the person seeking reasonable financial provision.

It appears that the section 3 point was at the heart of the court’s decision and it is interesting that the court did not draw any conclusions about what would happen if an applicant died after the court had carried out the section 3 exercise but before an order was made in the their favour.

Conclusion

On a first review, the judgment does little more than confirm what was largely considered to be settled law. However, the judgment does raise some very interesting points and goes to the heart of the objective of the Inheritance Act.

Any claim Mr Milbour had against his late wife’s estate would potentially have been of considerable value. Nevertheless, Mr Milbour’s family cannot pursue the same right.

As Francis says, ‘the common misconception among laymen, and to an extent even among lawyers, who may be unfamiliar with the terms of the 1975 Act, is that the jurisdiction is in some way designed to correct acts of unfairness, or to alter dispositions which are unreasonable, or to reward the just and deserving, or even to correct wills which are in some way “perverse”… The 1975 Act is not an instrument by which an imbalance between beneficiaries may be corrected’.

It could be said that the judgment in Roberts v Fresco confirms just that.