Rogers & Norton News
Our Litigation Team reports an increase of claims made by disgruntled beneficiaries, which may be linked to the publicity of the Mitson and Ilott case and general awareness about challenging a Will.
Peter Hastings comments “The purpose of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) is to make “reasonable financial provision” for a person in circumstances, whether they have a will or not, the rules governing the distribution of a person’s estate known as the “intestacy rules”, fail to do so.
It is widely accepted that a right to make a claim under the Inheritance Act ends with the death of the person who would bring such a claim, such that their heirs cannot then pursue a claim on that person’s behalf.
The issue was tested in the recent case of Roberts v Fresco  EWHC 283 (Ch) as Elizabeth Gibson reports;
Pauline Milbour died on 5 January 2014, leaving her husband, Leonard Milbour, a legacy of £150,000 and an income in the interest of £75,000, of her £17m estate. Mr Milbour died on 20 October 2014. Mr Milbour did not bring a claim under the Inheritance Act in the short period of time between his wife’s and his own deaths. On Mr Milbour’s death, his estate was worth £320,000, including the £150,000 that Mrs Milbour had left him. The matrimonial home did not form part of Mrs Milbour’s estate.
By his will, Mr Milbour left his estate to the claimants. The first claimant was Mr Milbour’s daughter and the second Mr Milbour’s granddaughter (her father, Mr Milbour’s son, having died in 2004). The defendant was Mrs Milbour’s only child.
The claimants therefore issued a claim under the Inheritance Act. The issue before the court related to their application which sought permission “to bring the claim under section 1(1)(a) of the 1975 Act against Mrs Milbour’s estate that Mr Milbour did not himself bring before his death in 2014”.
The difficulty the claimants faced in bringing the claim was the body of authority that claims under the Inheritance Act, like claims for financial provision in matrimonial proceedings, do not survive the death of the applicant.
The claimants contended that those authorities, namely Whyte v Ticehurst  Fam. 64 and Re Bramwell (Deceased)  2 FLR 263, were of persuasive authority only and had been incorrectly decided with the reasoning behind the judgments having been superseded by the Human Rights Act 1998. This was on the basis that under Article 1 of Protocol 1, ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession…’.
The claimants relied on several other arguments including that the Inheritance Act does not expressly limit claims to those brought by living persons or prevent the estate of a deceased from bringing a claim and the purpose of the Inheritance Act was to rebalance family affairs on death, in the event that no reasonable financial provision was made.
The court held that was no scope for arguing that Article 1 rights were engaged on the basis that Mr Milbour was deceased and his estate was neither a natural or legal person.
The judgment does raise some very interesting points and goes to the heart of the objective of the Inheritance Act.
Any claim Mr Milbour had against his late wife’s estate would potentially have been of considerable value. If you think you may have a potential claim, therefore, it is important that you seek legal advice as soon as possible and do not leave it for your loved ones to deal with after you have passed away, as it would be too late.
Contested probates are on the increase, with the number of disputes regarding Wills now at a record level, particularly in respect of claims under the 1975 Act. The above cases demonstrate the type of disputes which we are likely to see more and more frequently therefore.
We act regularly for Executors, Trustees, and disappointed family members in a variety of contested probate cases. Contested probate is a very complex area, with the number of legal challenges to wills strictly limited – we’ve highlighted the case as a good example of what issues can arise at what can be an exceptionally emotive time for families.
Recent cases include an order for the removal of an Executor and resolving a claim at mediation.
Contesting a will is a complex area and as such expert evidence should always be sought straightaway – never assume anything. At the beginning of every case we will go through a detailed series of questions, and review the will and the manner in which it was prepared.
Whatever your concerns with a will, we will always provide straightforward advice at the beginning of your case as to whether you are likely to succeed.