A Troubled End- Inheritance relief for disappointed
widows
The Inheritance Act 1975
The Inheritance Act 1975 provides a simple means of challenge to the disposition of
the estate where that disposition of the estate whether by will or intestacy is such as
not to make reasonable financial provision for (or in some cases for the maintenance)
members of a class of persons. We are concerned with Spouses and Civil Partners, to
which the Act applies in a special way.
Basis of Jurisdiction
It applies where a person has died domiciled in England and Wales leaving any of the
persons listed in Section 1 of the Inheritance Act 1975.
Who can apply?
The Class of Persons includes Spouses and Civil Partners1, and in the case of those who
died after 1st January 1996 it includes persons who cohabited as husband and wife in
the two years prior to the death.
The full list is
S 1 (1)
(a) the spouse or civil partner of the deceased2
1
As usual the position of Civil Partners is exactly the same as if they were married.
That is when he died, the fact that she has remarried afterwards does not prevent a claim, although it will go to
the issue the overall exercise of the Court’s powers. Another question entirely is whether the person who claims
to be a spouse actually was, in some cases the wedding certificate may need to be exhibited. Note also that
Section 25(4) of the Act protects the position of a person who enters in good faith into a marriage which is not a
marriage at all there remains a distinction between a void marriage and a non marriage, see Ghandi-v-Patel
[2002] 1 FLR 603, A-M-v-A-M [2001] 2FLR 6.
2
1
(b) a former spouse or former civil partner of the deceased, but not one who has
formed a subsequent marriage or civil partnership3
(c) a child of the deceased
(d) any person (not being a child of the deceased) who, in the case of any marriage
or civil partnership to which the deceased was at any time a party, was treated
by the deceased as a child of the family in relation to that marriage or civil
partnership
(e) Any person (not being a person included in the foregoing paragraphs of this
subsection) who immediately before the death of the deceased was being
maintained wholly or partly by the deceased
Then by S1 (1A) (which creates a new S1 (1) (ba)) where a person dies after 1st
January 1996 and
“during the whole of the period of two years ending immediately before the date
when the deceased died, the person was living(a) In the same household as the deceased
(b) As the husband or wife of the deceased
S (1) (1B) is the same as (1A) but for husband and wife read civil partner
Also Note
1. In relation to spouses, they remain spouses until decree absolute, a decree nisi
has no effect to prevent an Inheritance Act 1975 claim. Any Ancillary Relief
order made prior to death will have no effect unless the decree absolute is made
prior to death McMinn-v-McMinn [2003] 1FLR 823, sed quaere consent orders.
2. A spouse who remained a spouse but in relation to a marriage where there had
been a decree of Judicial Seperation is entitled to claim but only on the basis of
the less generous basis available to non spouses.
3. By Section 14 of the Act a spouse who has been divorced, but not remarried,
may still make a claim against the estate of his or her former spouse and be
treated on the generous terms available to a spouse, even though there was a
3
Again, if the former spouse was unmarried at death the fact that she marries afterwards will not prevent a claim
2
decree absolute before his or her death, provided there was no ancillary relief
order actually made prior to death IF
a. The deceased former spouse dies within a year from the date of the
decree absolute
b. The Court thinks it just, sadly there is little guidance on when the Court
will do this.
The Widows Might
In the case of spouses and civil partners “reasonable financial provision” means such
financial provision as it would be reasonable for a husband or wife to receive whether
or not that is actually required for his or her maintenance4. Non spouses in essence
need to actually show that the provision is required for their maintenance and that is
why they are harder cases to run.5
Void and Voidable Marriages
Section 25(4) and (5) provides
(4) For the purposes of this Act any reference to a wife or husband shall be treated as
including a reference to a person who in good faith entered into a void marriage with the
deceased unless either—
(a)the marriage of the deceased and that person was dissolved or annulled during the
lifetime of the deceased and the dissolution or annulment is recognised by the law of
England and Wales, or
(b)that person has during the lifetime of the deceased entered into a later marriage.
(5)Any reference in this Act to remarriage or to a person who has remarried includes a
reference to a marriage which is by law void or voidable or to a person who has entered
5
Maintenance means that which is required to maintain a persons living at a standard which is reasonable to them Re Dennis [1980] 2 All
ER 140.
3
into such a marriage, as the case may be, and a marriage shall be treated for the
purposes of this Act as a remarriage, in relation to any party thereto, notwithstanding
that the previous marriage of that party was void or voidable.
Note that a marriage that does not comply with the Marriage Acts may not even
qualify as a “Void Marriage” but be no marriage at all, Gandhi-v-Patel [2002] 1 FLR
603, Dulaki-v-Lamrani [2012] 2 FCR 574. It is well settled that there can be more
than one widow as a result of this definition Re Sehota 1978 1 WLR 1506.
The Courts approach
As we have already seen widows and their equivalents have only to prove that the
disposition of the estate was not such as to make reasonable financial provision for
them as a spouse, whether or not it is actually required for their maintenance. In
addition in every case it is necessary to consider the Section 3 factors which are set out
below. Certain cases however of recent vintage emphasise the strong position in which
a widow finds herself if she has recourse to the Inheritance Act and it’s procedures.
Before those, a look at the Section 3 factors which are relevant.
The Section 3 Factors
a. The financial resources’ and financial needs which the applicant has or is likely
to have in the foreseeable future
b. The financial resources and financial needs which any other applicant for an
order under Section 2 of the Act has or is likely to have in the foreseeable future
c. The financial resources and financial needs which any beneficiary of the estate
of the deceased has or is likely to have in the foreseeable future
d. Any obligations and responsibilities which the deceased had towards any
applicant for an order under the said Section 2 or towards any beneficiary of the
estate of the deceased
e. The size and nature of the deceased’s estate
4
f. Any physical and mental disability of any applicant for an order under the said
section 2 or any beneficiary of the estate of the deceased6
g. Any other matter, including the conduct of the Applicant or any other person
which in the circumstances of the case the court may consider relevant7
In the case of applicants who were married to the deceased (by Section 3(2))
a. The age of the Applicant and the duration of the marriage or Civil Partnership
b. The contribution made by the Applicant to the welfare of the family of the
deceased, including any contribution made by looking after the home or caring
for the family
c. The provision which would have been made on divorce or dissolution order as
the case may be
The Section 3 Factors as general principles
It is important not to lose sight of the fact that the factors are really the only thing that
the Court can take into consideration, that said there has been a material change since
the changes in Matrimonial finance brought about by White-v-White [2001] 1 AC
596, Miller-v-Miller, MacFarlane-v-MacFarlane [2006] 2 AC 618. As you would
expect these really tend to make a difference in the case of death following a short
marriage, even though logically given that death is beyond the control of the parties it
does not make sense to equate early death with early divorce, but for the death the
marriage might have lasted a long time.
Recent Case law continues to support the strong position of Widows, whilst
emphasising that every case turns on it’s own merits and that there are no mantras of
“equality” or any other glosses that can be added to the statutory factors. Nevertheless
6
Curiously Body Dysmorphic disorder didn’t count in Robinson-v-Bird [2004] WTLR 257.
As so often is the case, the court is reluctant to place much emphasis on conduct. In Espinosa-v-Bourke [1999] 1 FLR 747 the Court of
Appeal dismissed arguments that an Applicant who had behaved badly towards her father should have her claim rejected, emphasising need
instead. Good Conduct can count, see Re Abram 1996 2FLR 379 and Re Pearce 1998 2 FLR 705, where working in a family business with
an expectation of getting something in the end were factors in boosting the claims of adult children.
7
5
it is a rare case where a widow gets less than half. The principle of equal division was
regarded under the Act even before the days of White-v-White [2001] 1 AC596, see for
example, Re Bunning [1984] Ch 480 at 499 and Stead-v-Stead [1985] FLR 16 at page
27, albeit as a cross check.
It is a mistake to get too fixated on one factor to the exclusion of others, this tends to
be the case with the Section 3(2) factors and in particular the requirement to take into
consideration the likely divorce provision. It is in reality neither a floor8, and certainly
not a ceiling to the relief to be granted, but merely a cross check, no more important
than any other factor PvG PvP [2006] Fam 178 Re lilleyman –v-lilleyman [2012]
EWHC 821. You always have to bear in mind that there is only one spouse who needs
provision unlike the two who require provision in a divorce Re Krubert [1997] Ch 97
at page 104.
Re Cunliffe [2005] EWCA Civ 1508 is a case worthy of consideration, if only for the
fact that it is one of the few IHA cases to have gone to the Court of Appeal following
the White case in family law. The facts of the case were that the appellant executors
appealed against an order in proceedings under the Act that the widow of the
deceased should be paid a lump sum of £ 800,000 out of D's estate. The net value of
D's estate was GBP 1.4 million. D died at the age of 66. She had begun to work for the
deceased as his housekeeper about 18 months before he died. She had had few assets
and no independent income. She became financially dependent on the deceased,
initially as housekeeper and then as his wife. His will had been executed a year before
he died and a few days before he had married the applicant. By his will he left his
residuary estate on discretionary trusts for a class of beneficiaries which included her.
She had benefited by survivorship in relation to a number of funds and policies in the
joint names of herself and him to the value of over £220,000 The Executors accepted
that he had not made reasonable financial provision for her by making her one of a
discretionary class of beneficiaries.
8
The Law Commission report of 1974 which led to the Act does indeed, however, talk about relief being
available to a widow on “at least” the same basis as would be available on divorce, lending some support to the
floor hypothesis.
6
Note that this was a marriage of about 12 months, and the relationship in total was
only 18 months. She was awarded some £600,000 by the Court of Appeal, which was
less than the £800,000 she had received at first instance. The CA criticised the judge
for taking a “50/50” view, and said that he should have taken more account of the
Section 3 factors. She already had £220,000 from the estate and had an earning
capacity and because of the shortness of the marriage it was not necessarily
unreasonable that she should not continue to occupy the matrimonial home which
was manifestly excessive. The size of the estate meant that the other beneficiaries
needs could be met.
Although there was a reduction, given the brief marriage an award of £600,000
represented just under half of an estate worth £1.4 million, and it must be remembered
was on top of £220,000 from outside the estate, the net recovery was over half.
It was held that (in Cunliffe) “the blameless widow of a wealthy man is entitled to
look forward to a degree of financial security throughout the remainder of her life“.
What this meant thought was that the Widow was not expected to go back to the
standard of living that she had before the marriage, even if short, but it did not
necessarily mean that she should enjoy (in a short marriage case) the same standard of
living as she had during the marriage. In the case of Lilleyman referred to below, the
Court went even further and stated that on the facts issues of sharing and
compensation arose (by analogy with White, Miller etc) in addition to simple
questions of needs.
At the same time Wall LJ sounded a note of caution, emphasising that even in Whitev-White it was recognised that the circumstances could lead to departure from the
notion of equality and that this could mean that equality could be departed from in
high value estates. Note also Stephanides-v-Cohen [2002] WTLR 1373 which like
Cunliffe emphasises the strong position of a widow, especially against other claimants
on the estate. In the older case of Re Kreubert [1997] 1 FLR 42, it was suggested that
older widows would ordinarily have a greater need for income rather than capital, but
it is debatable given all that has happened in the law since that that is right, it is more
7
than just taking care of the widow, there is a real recognition that she has a right or
expectation.
In SUSAN BAKER v RAYMOND ROBERT JOHN BAKER & 5 ORS [2008] EWHC
977 (Ch) a widows life interest in the matrimonial home was converted into an
outright interest and the assets devolved under the will varied to provide her with an
income which maintained her in her accustomed standard of living. The estate was
worth about £1.4 million, the marriage about 20 years duration, although it was not a
first marriage and some of the Defendants were the children from an earlier marriage,
what is important in this case is that the court was not prepared to limit the relatively
young (57) widow to mere income or life interests, instead a substantial lump sum was
ordered which would be enough to generate her an income plus the outright transfer
of the house. I would venture to suggest that Testators who leave the wife a life
interest in the house only will always be vulnerable to challenge in long marriage cases
or in small estate cases, especially if the life interest is not constructed to allow
flexibility.
The question of Inheritance Act relief in a short marriage “big money” case was
recently considered further in Lilleyman v Lilleyman [2012] 2 FCR 171 (a first instance
decision of Briggs J). In the Lilleyman case a second marriage for both parties, the
deceased bought into the 2¼ year marriage his shareholdings in three companies built
up over more than 20 years since his first marriage. The shares constituted over 80%
of the net estate of about £6 million. The sons of the first marriage were the primary
beneficiaries of the Estate and they had derived their livelihoods from the companies
but had no other needs. Briggs J applying the spirit and to some extent the principles
of the Miller matrimonial cases observed that:
(a)
The principle of sharing is particularly applicable to the fruits of the
partnership to which the yardstick of equality applies in (a) if not a rule.
(b)
Property acquired during a marriage otherwise by gift or inheritance is
usually treated as matrimonial property and thus it has been committed to
non-matrimonial use.
8
(c)
Pre-owned property is not usually matrimonial property unless it has been
committed to long-term family use.
(d)
Any growth in a business bought into the marriage by one party which is
attributable to that party’s activity may be matrimonial property.
(e)
It may be positively unfair to share a pre-owned business especially as such
a sharing would detrimentally impact on that business itself.
Briggs J adopted the approach of Black J in the P v G case namely by saying that the
Court should not embark on a quasi ancillary relief but should simply treat that part of
Section 3(2) which refers to provision on divorce as a cross check.
The Court’s
approach was similar to that in Miller and in Feldon (re Cunliffe) in that the primary
concerns of meeting the Claimant’s needs generously interpreted and to those who
were quantified as being £400,000 being the Estate’s half share in the matrimonial
home and a lump sum of £235,000 to meet her housing needs and the shortfall in the
widow’s income needs. Matrimonial property as estimated at £1,475,000 excluding the
companies’ value as at the date of the marriage but including £275,000 of growth.
Therefore an equal share would have been a maximum of £737,500. A total award was
in reality just under £500,000 including the Estate’s half share in the matrimonial
home taking her share of the matrimonial assets to nearly £700,000. The fact that this
was a little bit short of 50% on applying the divorce cross check was not unfair because
of the shortness of the marriage. Added to her other resources Mrs Lilleyman was left
with just over £900,000 in cash and assets. The case is interesting because it involves
the interweaving of the strands of financial needs, compensation and sharing which is
rather more effective of the approach to an ancillary relief so that in big money cases
even in short marriage cases simply providing financial security for the rest of the life
of a widow may not be sufficient and an element of compensation and sharing
nevertheless remains important by virtue of the divorce cross check. It was however
emphasised that the degree of void to be applied to the cross check would always vary
with the facts of the case.
9
Similar logic prevailed in Iqbal-v-Ahmed [2011] EWCA Civ 900. This was a case
involving a modest estate consisting of a house worth about £115,000 and about
£28,000 cash. The deceased had left his widow of 22 years marriage a right to live in
the house for life and about £8,000 cash. The house was in poor repair. The trial judge
gave her the right to live there for lige, the right to half the proceeds on sale, and all of
the £28,000. The other beneficiary was the adult son of the deceased, apparently
convinced that his father wanted the estate kept together and with an emotional
attachment to his childhood home he appealed, and predictably failed. The key points
were, the fact that as a Widow she needed a cushion of assets to meet unpredictable
future needs, and the fact that a life interest alone would lead to unnecessary
supervision by the son in circumstances where the widow and he did not get on.
In Re Adams [2001] WTLR 493 the deceased was married to the Applicant for 54
years before death, there were 12 children (mostly if not all adults at the time of
death), by his will the deceased left to the Applicant the household goods, personal
effects and £10,000. Applicant said this was not reasonable and asked for the family
home which was owned in the deceased’s own name. Three adult daughters opposed
saying that the house was too big for the Applicant. She got the house, Behrens J
applying very much a White-v-White starting point. Her legacy was reduced to
£5,000. She would likely not have received the whole house on divorce of course. A
similar course was followed in McNulty-v-McNulty [2002] WTLR 737.
The same point was made in P-v-G [2006] 1 FLR 431 where the widow got over half
the estate, which was a substantial estate worth about £4 million.
A Word on Conduct
Unlike in Ancillary Relief cases the Court will take into consideration issues of conduct
and will use this heading on occasions to deal with “quasi estoppel” situations which
do not however amount to an estoppel, or the case of accidental omissions from
provision Re Styler [1942] Ch 387, or where the deceased made a mistake about the
way his will would operate Re Goodwin [1969] 1Ch 283.
10
Bad Conduct in the form of violence and denial of access did not materially preclude a
claim in Re Snoek (1983) 13 Fam Law 19, nor in Barron-v-Woodhead 2009 1 FLR
747. The latter case was one where the parties had split up in 2001 and the wife died in
2003. Despite the fact this was a dead marriage (no divorce proceedings commenced)
it was held that the widower claimant was entitled to at least a roof over his head and
an award of a life interest in £100,ooo and a lump sum of £25,000 made in his favour
out of an estate of £315,000 where he had been left nothing by will.
In Barron any attempt to analogise the treatment of conduct in IHA claims to those
under the MCA was specifically rejected, although it had been suggested in Snoek. The
big difference with the MCA is probably that conduct in that context almost invariably
seems to relate to bad conduct whereas under the IHA it is a far broader concept.
Procedural Matters
Although claims for IHA relief are not Probate Claims, so that they should not be
commenced via the Form N2 Probate procedure, part of CPR57 applies, that is
CPR57.14 to 57.16. PD 57 also applies.
The claim is a personal one and dies with the Claimant, even after issue, but not of
course after order Re R (1986) 16 Fam Law 58
Proceedings can be brought in the High Court or County Court, and the District Judge
has full jurisdiction. In the High Court, you can issue in the Chancery Division or the
Family Division (CPR57.15). If you issue in the Family Division you still apply CPR,
except for the rules about drawing up and service of orders when the FPR will apply
(ibid).
You must use a part 8 Claim Form (form n208) which should be headed “In the matter
of the Inheritance (Provision for Family and Dependents) Act 1975” and “Re (name)
deceased” Please note that
1. The Claim form must be supported by a witness statement which must be have
exhibited to it an official copy of any grant of probate or letters of
administration and also a copy of any testamentary document the subject of
11
such a grant. It is good practice to use the Section 3 factors as headings and
marshall the facts behind those headings.
2. The time for acknowledgment and the filing and service of a witness statement
in reply is 21 days after service of the Claim Form. (CPR 57.16)
3. A Defendant who is a PR needs to file the information required by PD57.16.
4. Proceedings are validly commenced by issuing against the Executors /
Administrators there is no need to join in beneficiaries at the beginning, usually
that will be dealt with at the first hearing.
5. A PR Defendant does not need a Re Beddoes Order. If he or she wishes to
remain neutral (typically the best course for a non beneficiary Executor) then
he should indicate that in the Acknowledgement (PD57.15)
Time
Section 4 of the Act provides that the time limit for making a claim is no later than 6
months from the date of the making of the Grant.
9
Many forms of limited grant
expressly by Section 23 do not start the clock ticking, and the commentators suggest
that in fact no form of limited grant will do so, so that only a full grant will trigger the
6 months. Grants that are ineffective, ie which are later revoked, will not start time
running.
Making for these purposes means issuing, Re Chittenden [1970] 1 WLR 1618, so that
you can issue without serving for up to the four month period prior to expiry of the
part 8 claim form.
You cannot/Should not
make a claim (probably) before the Grant is made, Re
McBroom [1992] 2FLR 49. An application which is made before the Grant will
probably be allright if the Grant is made before a hearing in the matter, eg before it is
actually served Re Searle [1949] Ch.73.
If the representatives will not take a grant then they can be Cited under the NCPR and
the High Court also has power to award a grant to anyone it sees fit under Sections 116
9
“An application for an order under section 2 of this Act shall not, except with the permission of the court, be
made after the end of the period of six months from the date on which representation with respect to the estate of
the deceased is first taken out.”
12
and 117 of the Senior Courts Act 1981, it is settled now that you can bring proceedings
purely for that purpose using part 8.
Where an application is made late the Court has an unfettered discretion to allow it to
proceed Re Salmon [1981] Ch 167. A detailed analysis of the principles is beyond the
scope of the presentation but key issues will be; how late the application actually is;
whether any forewarning was given within the 6 months, whether there has been any
distribution; the reason for any delay; the merits of the case; whether there is the
possibility of a claim against legal advisers if the application is refused. The cases
emphasise that the burden is on the Claimant to make out a case for relief.
13