The Inheritance (Provision for Family & Dependants) Act 1975 allows certain categories of claimant to bring a claim against an estate where 'reasonable financial provision' has not been made for them either under the deceased’s will or on intestacy.

The categories of claimant include a spouse or civil partner, former spouse or civil partner, cohabitee, child or someone treated as a child of the family or someone who was financially dependent on the deceased. The majority of claims under the 1975 Act do not reach the courts but are resolved between the parties, frequently by way of mediation. However, some cases are decided by the courts and in December 2017 the Court of Appeal delivered its first judgment in a case brought by a cohabitee.

The claimant in this case was a 91 year old gentleman, Mr Warner, who had cohabited with the deceased for nearly 20 years in her property. Under the terms of her will, the deceased’s entire estate (including the property) was left to her daughter, Mrs Lewis, who wanted Mr Warner to leave the property so that she could sell it. Mr Warner was significantly better off financially than the deceased. He had expected to die before the deceased (he was older than her) and there was never any understanding between them that he would have an interest in her estate. He had sufficient funds to buy an alternative property but argued that he wanted to remain in the home that they had shared for 20 years. He was in poor health and assisted by his neighbours and a move would have caused great upheaval.

The court at first instance ordered that the property be transferred to Mr Warner in exchange for payment of £385,000. (The property had been valued at £340,000). Mrs Lewis appealed. That appeal was dismissed and she appealed again to the Court of Appeal.

The Court of Appeal had to consider two questions:

  • was the original judge correct to conclude that the deceased’s will did not make reasonable financial provision for Mr Warner?
  • was he entitled to make the order that he made?

On the first question, the Court of Appeal held that 'maintenance' could extend to the provision of a house for a claimant to live in. The judge had found that as the deceased had been providing a home for Mr Warner, he was being maintained by her and, taking into account all the factors, he needed that maintenance (at that particular property) to continue as opposed to moving house. The Court of Appeal held that the judge had undertaken the appropriate balancing exercise under the Act.

On the second question, the issue was whether an order requiring the estate to transfer the property to Mr Warner at full value could be regarded as maintenance. The Court of Appeal upheld the decision at first instance and said that there was nothing wrong with the order. It may have been an unusual order but this was a case where Mr Warner’s needs were for a specific property and the precise financial value of the property was less important to him than the value of the property itself.

The case is an unusual one and the Court of Appeal itself referred to its 'exceptional circumstances'. However it does highlight the range of orders that a court can make under the Act and that what a party needs for his or her maintenance is not necessarily purely a financial need which can be met by way of an award of capital or income.