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CONTESTING A WILL – CLAIMS BY SPOUSE FOR FINANCIAL PROVISION FROM THEIR LATE HUSBAND OR WIFE’S ESTATE

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider how spouses can claim for financial provision from their late husband or wife’s estate

Can a disappointed widow or widower claim from the estate of their late husband or wife?

A disappointed spouse can bring a will contest or will dispute claim against her (or his!) deceased husband’s estate pursuant to section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see for example: https://www.thegazette.co.uk/wills-and-probate/content/100346 and https://www.willclaim.com/inheritance-act-claims-reasonable-financial-provision/), in circumstances where they have either been left nothing at all in their late husband or wife’s Will or insufficient.

What financial provision can he or she (the surviving sponse) expect to receive (from his/her deceased’s husband’s estate)?

As usual the position is complicated by a number of factors (some of which we will refer to below). However (and here lies the advantage of being married) there is a legal obligation to make reasonable financial provision for one’s spouse. What follows is the starting point (as per Lord Justice Will in Fielden v Cunliffe (2005) EWCA Civ 1508):

In short, I think it right to approach the case on the basis that in marrying the deceased, Mrs. Cunliffe, like Mrs. Miller (see Miller v Miller [2005] EWCA Civ 984, [2005] 2 FCR 713) was entitled to have what Singer J described in the latter case as “a reasonable expectation that her life as once again a single woman need not revert to what it was before her marriage”; (see [2005] 2 FCR 713 at 724, paragraph [41]), and that she could look forward to financial security for the rest of her life. Since the judge expressly disregarded conduct, it is in my judgment appropriate to approach her claim for reasonable financial provision on that basis.

The 1975 Inheritance (Provision for Family and Dependants) Act 1975 criteria

Any claim by the disappointed spouse is governed by this Act – https://www.legislation.gov.uk/ukpga/1975/63

Here are the critical sections which your no win no fee solicitor is going to have to refer to in relation to any will dispute or will contest claim arising from this:

Section 1(2)(a) confirms that the provision must be more than just basic maintenance:

(2)In this Act “reasonable financial provision”— (a)in the case of an application made by virtue of subsection (1)(a) above by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance;

Section 3(2) suggests that the court will take into account the contribution to the welfare of the family, the duration of the marriage and what might be deemed to be reasonable financial provision if instead of one of the parties to the marriage dying, they had simply divorced “the deemed divorce cross-check”:

(2)[F14 This subsection applies, without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(a) or (b) of this Act.]

The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—

(a)the age of the applicant and the duration of the marriage [F15or 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.

F16. . . In the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce [F17; but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made by an order under section 2.]

How important are the laws of divorce then?

The deemed divorce cross-check means they are relevant but certainly not the only criteria and they have been slightly watered down in recent years, since section 3(2) (above) has had added to it the words:

[F17; but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made by an order under section 2.]

Nevertheless, in Lilleyman v Lilleyman 2012 EWHC 821 (https://www.bailii.org/ew/cases/EWHC/Ch/2012/821.html), the court made the point that in fact the divorce cross-check was in one sense bound to be inadequate, given because one of the parties to the marriage had died (rather than moved on to a new life), there was much more scope to take into account the needs of the surviving party to the marriage and in any event, he or she, had not expected it to be ended and fully expected to commit the rest of his/her life to it. In other words that the law or divorce might produce an inadequate outcome anyway. As per Mr Justice Briggs:

The Court of Appeal focussed upon what was regarded as her legitimate expectation that a consequence of her marriage, however long or short, was that she should obtain financial security for the rest of her life without being forced back to the standard of living which she had enjoyed pre-marriage, but without guaranteeing her the exceptional standard of living briefly enjoyed during the marriage.

Undoubtedly a short marriage is likely to lead to a less generous award, but plainly that isn’t the whole story here. The courts discretion is wide as is the range of facts that applies to each case.
If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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