As a surviving spouse, does your claim under the Inheritance Act survive if you then die?

Testing whether Inheritance Act Claims die with the Claimant

In this blog we look at the situation of claims under the Inheritance Act and whether the right to claim continues if the Claimant dies during proceedings.

Some legal actions survive even when a claimant has died – so for example in a personal injury claim, the personal representatives of an injured Claimant can continue to pursue the claim after the Claimant has died. Equally in these cases, a Claimant can continue to pursue a claim against a deceased Defendant. The position is different in Inheritance Act Claims. It is generally understood that any claim under the Inheritance Act dies with the Claimant. This was challenged in a recent case Roberts v Fresco [2017] EWHC 283 (Ch) – and we look at the position.

The Facts of Roberts v Fresco

Mr and Mrs Milbour married in 1973. The y had no children together, but Mr Milbour had a daughter (the first Claimant) and a son who had died in 2004. The son’s surviving daughter was the second Claimant. Mrs Milbour had a daughter, the defendant. The couple died within a few months of each other, Mrs Milbour on 5th January, Mr Milbour on 20th October, 2014. Mrs Milbour’s estate was valued at over £16 million. In her will, she left her husband £150,000 and an interest in the income of £75,000. Mr Milbour’s estate amounted to £320,000 including the inheritance from his wife. This was left to the Claimants, who were originally to be his executors. By codicil, the Defendant and her husband were made executors, although the Claimants remained sole beneficiaries.

In the time between his wife’s death and his own, Mr Milbour could have brought a claim under the Inheritance Act (provision for Dependants) Act 1975 (the Act), but did not do so. The Claimants brought a claim, amended in November 2016, to bring a claim under section I(1)(a) of the Act – a claim that Mr Milbour could himself have brought before he died.

The Court did not agree with the Claimants – they could not make the claim under section 1(1)(a) that had been open to their father

  1. There was already authority, in Whytte v Ticehurst [1986] Fam 64 to say that the right to claim by a surviving spouse under the Act was personal to that surviving spouse
  2. The right to claim under the Act is not a ‘cause of action’ which survives – but a ‘hope or contingency’
  3. There was no breach of Article 1 of the Human Rights Act

Not a cause of action but a ‘hope or contingency’

The court confirmed previous decisions identifying the right to claim under section 1(1)(a) is not a ‘cause of action’ but a hope or contingency. It only becomes a ‘cause of action’ once the assessment under section 3 of the Act – whether reasonable provision has been made for the spouse has been carried out. It would be interesting to see if a court reached a different decision if a surviving spouse had died after the section 3 assessment but before an order had been made in his or her favour.

An estate is not a ‘natural or legal person

The argument that it was a breach of Article 1 of the Human Rights Act failed because an estate is not a ‘natural or legal person’. Although Mr Milbour would have had a reasonable expectation of succeeding in a claim under the Act – the claim being the ‘possession’ protected by Article 1. However, although Mr Milbour was a ‘natural or legal person’, his estate was not, so the Claimants could not rely on a breach of Article 1 to support their claim.

Ultimately, if someone wishes to claim under the Inheritance Act 1975, they must do so expediently. Had he not died, Mr Milbour would, in any event, only have had 6 months from the grant of probate to bring his claim. Although Mr Milbour’s claim, had it succeeded , would have been worth a significant amount of money, his own beneficiaries could not pursue the claim when he had, for whatever reason, chosen not to.

If you feel that your spouse’s will has not made reasonable provision for you, we can guide you through bringing a claim under the Inheritance Act. While this will be a sad and distressing time, and legal action may be the last thing you are thinking about, there is a 6 month time limit to bring such claims, so it is worth talking to us sooner rather than later and we will do what we can to help.

Photo by Álvaro Serrano on Unsplash