The case of Roberts v Fresco raised the question of whether the estate of a deceased spouse could bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
There has been long-standing authority for the principle that a claim under the Act is personal to the claimant and does not survive the death of the claimant. If the claimant dies before an order has been made by the court, there is no cause of action for the deceased claimant’s personal representatives to enforce.
Claims brought by spouses under section (1)(1)(a) the Act are not limited to provision for maintenance. The court will make an award which is reasonable in all the circumstances and will consider what the surviving spouse might have received had the marriage between terminated by a decree of divorce. In divorce proceedings, the starting point is equal sharing between the spouses and the court can depart from that principle for various reasons including need and availability of resources. The applicant is only deemed to obtain enforceable rights on the making of an order and those rights do not extend to the applicant’s estate on death.
Mrs Milbour died leaving her husband a pecuniary legacy of £150,000 and a life interest in £75,000. The net value of her estate was £16,776,054.
Mr Milbour died shortly after his wife leaving his estate to his daughter from a previous marriage and to his granddaughter (who we collectively call ‘the claimants’). Mr Milbour’s estate was worth £320,000.
The claimants applied for permission to bring a claim under the Act on behalf of Mr Milbour’s estate for financial provision from Mrs Milbour’s estate on the grounds that Mrs Milbour’s will did not make reasonable financial provision for Mr Milbour, and Mr Milbour did not have enough time to bring a claim during his lifetime.
The claimants argued that the established authority for the principle that a claim does not survive the death of the claimant was superseded by Article 1 of the Protocol 1 to the European Convention on Human Rights, which appears at Part II of the Human Rights Act 1998. Article 1 provides:
‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’
High Court judgment
The High Court dismissed the claimants’ application.
The judge found that Article 1 was not engaged because Mr Milbour’s estate was not a natural or legal person, and upheld the existing principle that a Act claim does not survive the death of the claimant. The judge agreed with the defendant’s submissions that:
- A cause of action cannot exist ‘until the trial judge carries out the section 3 exercise, and determines whether or not reasonable financial provision was made for the applicant’
- The section 3 exercise could not be carried out in this case because ‘a deceased applicant has no such resources or needs. His estate is merely a property fund to be distributed to the beneficiaries’
The judge confirmed that ‘the analogy with claims under the 1973 Act is correct, and that the potential claim under the 1975 Act is indeed personal to the applicant. Unless the applicant brings the claim and obtains an order, it remains a hope or contingency.’
The judge concluded that ‘there was no enforceable right at the time of death and thus no cause of action.’
This case supports the established principle that claims under the 1975 Act cannot survive the death of the claimant.
Interestingly, and no doubt in view of the considerable value of Mrs Milbour’s estate, the judge said that had Mr Milbour made a claim against Mrs Milbour’s estate before he died, he would have had ‘a reasonable expectation of succeeding.’