English High Court confirms that a claim for financial provision from an estate does not survive death of the applicant

Under English law (and the law of many countries with similar legal systems), a dependent of a deceased person can – subject to various conditions – apply to Court for a payment out of the deceased's estate. The basis of this claim is that the dependent received inadequate provision under the will or under the intestacy provisions.

The English High Court has held that a claim for financial provision under section 1 (1) (a) of the Inheritance (Provision for Family and Dependents) Act 1975 (the "Act") will not survive the death of the applicant: Laurel Marilyn Roberts & Ors v Luanne Fresco [2017] EWHC 283. This is so because a right to bring a claim under the Act is not a cause of action unless an order for financial provision is handed down by the Court prior to the applicant's death.

This case is a reminder that the Court will take a strict approach when considering the timing of claims for financial provision under the Act. As such, a person entitled to bring a claim for financial provision must act quickly. Conversely, those acting for an estate should be aware of this limitation when defending claims for financial provision under the Act.   

Background

Mr and Mrs Milbour married in 1973, each with children from a previous marriage ("Mr and Mrs M"). Mrs M died on 5 January 2014 leaving an estate of considerable value (approx. £16 million, in addition to property in London, "Mrs M's Estate"). Mrs M left her husband a relatively small legacy under her will. Mr M (as Mrs M's surviving spouse) could, in principle, have brought a claim under the Act for reasonable financial provision to be provided to him out of Mrs M's Estate. This claim would potentially be of significant value because the starting point for such claims by spouses is the same as in matrimonial proceedings - i.e. equality between spouses. Mr M did not advance this claim before his death in October 2014.  

The First and Second Claimants were Mr M's daughter and granddaughter (her deceased father being Mr M's son) (together, the "Claimants"). The Defendant was Mrs M's only child and the sole personal representative of Mrs M's estate.  

Claimants' applications

The Claimants sought to bring a claim:

1. on behalf of Mr M's estate for reasonable financial provision out of Mrs M's Estate under section 1 (1) (a) of the Act (the "First Application"); and
2. under section 2 (1) (f) of the Act in relation to Mr M's estate to vary the settlement of the former matrimonial home (the "Second Application").

The majority of the judgment is directed to the First Application and an examination of case law in this area, including Whytte v Ticehurst [1986] Fam 64 and Re Bramwell (deceased) [1988] 2 FLR 263. The remainder of this blog post therefore considers only the Court's analysis of the First Application.  

Issues for the Court to determine

The main questions before the Court were a) is a claim under section 1 (1) (a) of the Act a cause of action that survives the death of Mr M and b) if so, can that cause of action be pursued by his estate? (the "Questions")

Decision            

The Court answered "no" to both Questions for two main reasons:

Established High Court authority

The Court recognised that there is established High Court authority that a claim by a spouse under section 1 (1) (a) of the Act does not survive the death of the applicant: Whytte v Ticehurst. In that case the Court found that a surviving widow, who applied for provision under the Act but died before the hearing, did not have an enforceable right against her deceased husband's estate. There was no cause of action that survived her to be pursued by her estate.

This position is supported by Re Bramwell on similar facts. In that case the Court held that a claim for financial provision does not give rise to a cause of action unless an order is made in respect of it before the death of the applicant. Before that point it is merely a "hope and contingency" (referring to Sugden v Sugden [1957] 2 WLR 210).

In its analysis of these cases the Court made two important observations: 

Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (the "1934 Act") abolished the common law rule that personal actions die with the individual; it states that "all causes of action subsisting or vested in [the deceased] shall survive against… his estate". This means that for personal representatives to bring a claim (i.e. under the Act) a cause of action must vest in the deceased before his death.

There are similarities between a claim under the Act and a claim for financial relief by a spouse under the Matrimonial Causes Act 1973 (the "1973 Act"). There is established case law that an application for relief under the 1973 Act does not subsist against the estate of a deceased spouse. It is arguable that these principles are also applicable to claims under the Act.

The Claimants argued that these cases were wrongly decided and should not be followed. They advanced two arguments in support of this: 1) the decisions pre-dated the Human Rights Act 1998 ("HRA") and therefore, if followed, would breach Mr M's Article 1 rights (to peaceful enjoyment of his possessions i.e. his reasonable expectation to bring a claim under the Act) and 2) there is nothing in the wording of the Act to suggest that a claim cannot survive the death of the applicant (an argument based on construction and described further below).

The Court quickly dismissed point 1 on the basis that Article 1 of the HRA 1998 is only engaged when the applicant is a "legal and natural" person. The Court held that there was no scope for arguing that Article 1 rights were engaged because Mr M was deceased and his estate was neither a natural or legal person.

Construction of the Act

On point 2, the Claimants argued that the wording of the Act does not suggest that a claim for financial provision cannot, in principle, be advanced after the applicant's death.

The judge agreed with the Claimants that the Act does not, in itself, expressly preclude a claim being brought by the estate of a person who before his death fell within the Act.

However, the judge ultimately disagreed with the Claimants, relying principally on Dyson LJ's analysis in Harb v King Fahd Bin Abdul Aziz [2006] 1 WLR 578. He held that if it had been intended that applications for relief under the Act would survive the applicant's death, this would have been expressly provided for in the Act. The leading textbooks and case law in this area also support that conclusion. Laws in other countries (such as New Zealand) specifically make clear that claims for financial provision can survive the death of a spouse.

The Court then considered whether, on a true construction of the Act, a claim under the Act can be pursued by the deceased's estate. The Defendant argued that a claim under the Act is not a cause of action because 1) a deceased person is not within the categories of persons allowed to advance a claim under Section 1 and 2) a claim is only established once the Court carries out an assessment of the application under Section 3. Until that stage, the claim is merely "hope and contingency" rather than a cause of action. This is supported by the fact that, pursuant to the 1934 Act, a cause of action must vest in the deceased before it can be pursued by his estate.  

The Court agreed with the Defendant and held that the Act gives a personal right for an applicant (Mr M in this instance) to bring a claim rather than a cause of action. This claim only becomes a cause of action once the Court considers the application (using the factors under Section 3) and grants an order for financial provision. Referring to Whytte v Ticehurst, the Court also pointed out that it would be nearly impossible to analyse an application for financial provision of a deceased's estate because many factors "are based upon the fundamental assumption that one of the parties to the marriage survives the date of the hearing."

Conclusion

The Court therefore dismissed the First Application on the basis that it had no real prospect of success. The Court decided that before his death Mr M had a personal right to bring a claim under the Act. This right is not a cause of action unless an order for financial provision is handed down by the Court. There was therefore no cause of action that survived Mr M to be pursued by his estate.   

This case confirms that, despite previous uncertainty, Whytte v Ticehurst remains good law and a claim for financial provision under the Act does not survive the death of the person with the claim.