CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEESPECIALISTS – FINANCIAL PROVISION CLAIMS BY THE DECEASED’SWIDOW (OR WIDOWER)
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors discuss how financial provision claims by the deceased’s widow (or less common – “widower”) are dealt with
What are “financial provision claims”
These are claims (by the deceased’s widow or widower) under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) for financial provision against the estate of their former spouse – they are generally considered to be “favoured applicants” so in general, their claims (subject to the court’s discretion) are likely to be successful, where provision under a will (or by the rules of intestacy) is found to be inadequate. For further detail please consider our earlier blog:
How in particular are these claims calculated
In the recent decision of AB v B & C [2025] EWHC 1891 (Fam) Mr Justice Francis, considering an application for pre-action disclosure, in relation to a substantial estate, provides a helpful summary of the facts and matters which the Court will take into account by reference to the Act.
AB v B & Anor [2025] EWHC 1891 (Fam) (04 July 2025)
For example under paragraphs 15, 16 and 17 he says:
15. For the purposes of the application, I must therefore have particular regard to the following: a. the size and nature of the net estate of the deceased; b. 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 divorce order.
16. The Inheritance Act followed just two years after the Matrimonial Causes Act 1973. The importation of the familiar “section 25 factors” into section 3 of The Inheritance Act gives rise to what is often referred to as “the divorce analogy” or “the divorce crosscheck”. Indeed, it is for this obvious reason that so many of these claims are heard in the Family Division. Since the seminal case of White v White [2000] UKHL 54, discrimination between spouses has, of course, been outlawed and there is a duty upon the court to carry out an appropriate assessment of the resources of the parties. This is usually referred to as “the computation stage”. In the “pre White days” when discrimination prevailed in the bigger money cases, the wife mostly being awarded her “reasonable needs” (as they were patronisingly called) and the husband retained the rest, it was sometimes thought that it was not always necessary to carry out a full scale computation. For a time, a device was utilised by the wealthy spouse (more usually in those days the husband) which became referred to as “the millionaire’s defence”. The practice emerged for a time whereby an extremely wealthy husband did not need to give full disclosure of his resources to his wife upon divorce because he could meet her “reasonable needs, however generously interpreted”. Those days are gone. Numerous cases have sought to interpret, develop and adjust the application of the sharing principle which derived from White. An analysis of those cases in this Judgment is unnecessary but it is, it seems to me, helpful to look at what was said in this context by Sir Mark Potter P in his Judgment in the Court of Appeal in Charman v Charman [2007] EWCA Civ 1085: “To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the property of the parties generated during the marriage otherwise than by external donation; and the consequence would have been that non-matrimonial property would have fallen for redistribution by reference only to one of the two other principles of need and compensation to which we refer in paragraph 68 below. Such an answer might better have reflected the origins of the principle in the parties’ contributions to the welfare of the family; and it would have been more consonant with the references of Baroness Hale in Miller at [141] and [143] to “sharing … the fruits of the matrimonial partnership” and to “the approach of roughly equal sharing of partnership assets”. We consider, however, the answer to be that, subject to the exceptions identified in Miller to which we turn in paragraphs 83 to 86 below, the principle applies to all the parties’ property but, to the extent that their property is non matrimonial, there is likely to be better reason for departure from equality. It is clear that both in White at p.605 F-G and in Miller at [24] and [26] Lord Nicholls approached the matter in that way; and there was no express suggestion in Miller, even on the part of Baroness Hale, that in White the House had set too widely the general application of what was then a yardstick.”
17. There have, of course, been very many developments and interpretations of the law since White in 2000, Miller, McFarlane in 2006 and Charman in 2007. But the central principles are derived from these cases. The reasons why I refer to these landmark cases now is to remind myself, and to explain to the parties, that: a. The judge has a duty in this case to consider the factors listed in The Inheritance Act, often referred to as “divorce analogy”; and b. The application of the divorce analogy cannot properly be carried out without proper computation of the assets, in this case the principal asset being the deceased’s shares in Z Limited So when considering a claim for financial provision for spouses under the Inheritance Act 1975, the courts take into account matrimonial property formed during the marriage and apply a “divorce cross-check” to assess what the spouse might have received had the marriage ended in divorce rather than death. This ensures fairness and consistency in financial provision.
Key Considerations:
1. Matrimonial Property:
- The court evaluates the assets acquired during the marriage, including shared property and financial contributions by both spouses.
- Matrimonial property is treated as part of the estate available for financial provision, reflecting the shared economic partnership during the marriage.
2. Divorce Cross-Check:
- The court considers what financial provision the surviving spouse would have received in a hypothetical divorce scenario under the Matrimonial Causes Act 1973.
- This includes factors such as division of assets, maintenance payments, and the spouse’s financial needs post-divorce.
- The cross-check ensures that the surviving spouse is not disadvantaged compared to what they might have received in a divorce settlement.
3. Fairness and Maintenance:
- The court aims to provide “reasonable financial provision” for the spouse’s maintenance, which may exceed basic needs if the marriage was long and the estate is substantial.
- The court balances the spouse’s claim against the interests of other beneficiaries and the size of the estate.
4. Judicial Discretion:
- The court exercises discretion in determining the appropriate level of provision, taking into account the deceased’s obligations, the surviving spouse’s financial resources, and the nature of the matrimonial property.
By applying the divorce cross-check, the courts ensure that the surviving spouse receives a fair share of the estate, reflecting their contributions during the marriage and their financial needs after the deceased’s passing.
If you consider any of these facts and matters are of interest, 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 and/or visit us at www.willclaim.com.
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