Analysis
The High Court was asked to determine, as a preliminary issue, whether a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) by a surviving husband against his late wife’s estate abated on the death of the husband. The wife (Mrs Milbour) died on 5 January 2014, the husband (Mr Milbour) shortly thereafter on 20 October 2014. Mr Milbour did not bring a claim under the 1975 Act against Mrs Milbour’s estate during his lifetime.
The net value of Mrs Milbour’s estate was £16,776,054. By her will Mrs Milbour left Mr Milbour a pecuniary legacy of £150,000 and an interest in the income of £75,000. Mr Milbour’s gross estate on his death was £320,000, including the £150,000 inherited from Mrs Milbour. Any claim by Mr Milbour against Mrs Milbour’s estate would potentially have been of considerable value, as he would have been entitled to such financial provision as it would be reasonable in all the circumstances of the case for him to receive, whether or not that provision was required for his maintenance (s1(a) and 2(a) of the 1975 Act).
The claimants were the sole beneficiaries under the will of Mr Milbour. They commenced proceedings under the 1975 Act against the defendant in her capacity as the personal representative of Mrs Milbour’s estate. The claimants subsequently applied to amend the claim form so as to bring a claim under s1(1)(a) of the 1975 Act against the estate of Mrs Milbour that Mr Milbour did not himself bring before his death in 2014.
The claimants also sought permission to amend the claim form so as to vary the settlement of the former matrimonial home under s2(1)(f) of the 1975 Act. The matrimonial home was worth about £9m, and was held upon trust for the wife for life with remainder to the first claimant.
Held:
- 1)There was High Court authority that a claim under the 1975 Act, like a claim for financial provision in matrimonial proceedings under the Matrimonial Causes Act 1973 does not survive the death of the applicant (Whytte v Ticehurst [1986] Fam 64; Re Bramwell [1988] 2 FLR 263). These cases remain good law and were correctly decided.
- 2)The 1975 Act gives a personal right to bring a claim, but that right is not a ‘cause of action’ within s1 of the Law Reform (Miscellaneous Provisions) Act 1934 which can survive for the benefit of the applicant’s estate. It is a hope or contingency which falls short of being a cause of action in the sense of a state of facts which if true enables the applicant to get a remedy from the court. The facts are not determined until the court carries out the exercise under s3 of the 1975 Act; until that point, the claim remains a hope. There was, therefore, in the present case, no enforceable right at the time of Mr Milbour’s death and thus no cause of action.
- 3)Furthermore, the s3 exercise, in the context of a deceased applicant, would be a ‘well-nigh impossible task’ as many of the factors are clearly based upon the fundamental assumption that one of the parties to the marriage survives at the date of the hearing. The analogy with claims under the Matrimonial Causes Act 1973 is correct: the potential claim under the 1975 Act is personal to the applicant. Unless and until the applicant brings a claim and obtains an order, it remains a hope or contingency. Had it been intended that a claim under the 1975 Act should survive for the benefit of the estate of a potential claimant, the statute would have so provided. The 1975 Act does not expressly provide for such claims to enure for the benefit of a deceased’s estate.
- 4)The above reasoning has not been superseded by Article 1 of Protocol 1 of the Human Rights Act 1988 which provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. It was submitted that the husband’s reasonable expectation of succeeding in his 1975 Act claim was a possession. However, Article 1 rights were not engaged as the husband was now deceased, and his estate was neither a natural or legal person.
- 5)The claim which the husband had did not survive his death, and no proceedings should be permitted by his estate under the 1975 Act. The application to amend the claim form to enable the claim which the husband had before his death to proceed had no real prospect of success and should be dismissed.
- 6)The court had power under s2(1)(f) of the 1975 Act to vary any ante-nuptial or post-nuptial settlement made on the parties to the marriage to which the deceased was one of the parties, the variation being for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage. It was not in dispute that the relevant settlement was a nuptial settlement. The first claimant was the child of Mr Barbour’s first marriage. There was a real prospect of the first claimant being able to establish that she was treated by Mr Milbour as a child of the family in relation to his second marriage to Mrs Milbour. There was no conceptual difficulty in Mr Milbour treating the first claimant as the child of both his first and second marriages. Whether this was, in fact, the case was a question of fact in relation to which there was a real prospect of success. Permission was, therefore, given to amend the claim form so as to allow the first claimant to bring a claim under s2(1)(f) of the 1975 Act.
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