Civitas Law supporting Higher Education in Wales

Civitas Law continues to support Higher Education in Wales through its established partnerships with several University Law Schools. Rachel Anthony recently lectured on a case law update on claims under the Inheritance Act. You can read her lecture below:

Life and Death After Ilott v The Blue Cross and Others

A Case Law Update on Claims under Inheritance (Provision for Family and Dependents) Act 1975

 

Mrs Ilott’s case was decided by the Supreme Court some time ago- [2017] UKSC 17- with the final decision being that the first instance District Judge had, after all, decided it correctly. What has happened since?

Constance McDonnell QC in her piece in the New Law Journal[1] states that subsequently at first instance, Judges are rarely referring to testamentary freedom let alone noting it to be a significant factor when weighing up the various factors in Section 3 Inheritance (Provision for Family and Dependants) Act 1975. 

In Re Nahajec Deceased [2017][2] Leeds CC, the Deceased left his Estate of approx. £266, 000 to a friend. The Claimant  was the Deceased’s daughter. The Deceased had two other children, who were half siblings to the Claimant. One of the half siblings was content to leave matters as they were; the other had made a claim under the 1975 Act which was settled for £22, 000. The Claimant could show she was the Deceased’s daughter and that she was in straitened financial circumstances. The Deceased and the Claimant had become estranged, it appeared, because the Deceased did not approve of the Claimant’s boyfriend. As with Ilott, the Court showed itself willing to wade through the rights and wrongs of the family disharmony. In Nahajec, the Court concluded that the Deceased Father was to blame. This meant the Claimant had a moral claim in addition to the relationship and need factors, and therefore her claim was successful. She was awarded £30, 000.

In   Wellesley v Earl Cowley [2019][3] EWHC 11Ch , the Deceased Father did not approve of his Claimant daughter’s lifestyle. He and his daughter had been estranged for 30 years. He left his daughter £20,000 by his will. The Deceased’s widow, the Claimant’s brother and her step- siblings were left to share the £1.31 million Estate. She was financially in need and could prove a qualifying relationship. However, her claim failed. She had sought a percentage of the Estate. However, the Court concluded that there was no basis to say awards should be quantified by a percentage. The Court was concerned with reasonable financial provision – the Deceased Father, said the Court, was not being unreasonable. It found that the starting point was the Deceased’s wishes as expressed through his Will. The Court then found that the Claimant was to blame for the estrangement alone and that the Deceased had not been vindictive, malicious or unfair. Her conduct outweighed the other factors. Her claim was dismissed. 

In Thompson v Raggett [2018][4], the Deceased and the Claimant has lived together as an unmarried couple for 42 years.  The Claimant was financially dependent on the Deceased. In 2015, due to ill health, she moved into a care home. The Deceased bought a cottage with a view to improving it, so that he could live there. Unfortunately, he died before he was able to move in. He left his £1.5 million estate to two of his  tenants who were subsistence farmers. In the letter of wishes accompanying his will, he stated that he believed the Claimant to be financially comfortable, that she would remain in her nursing home place, and that he did not want the Claimant’s children to benefit from the Estate. 

The Claimant had savings of approximately £2, 500, and income from benefits of £1,114 per month. She made an application, stating that she wished to move from the nursing home and into the cottage. Her son offered to live with her. She sought a transfer of the cottage to her, and a monetary award to adapt the cottage to her needs, for a care package and general outgoings. 

The Court weighed the needs to the beneficiaries against the needs of the Claimant. It found that the both had modest financial resources, but even if the Court were to make an award to the Claimant, there would still be plenty for the two tenant beneficiaries. 

The real issue , said the Court,  was assumed responsibility. The Court found that the Deceased had a high level of responsibility to the Claimant in light of the length of their cohabitation and her dependence upon him. The Deceased has assumed no responsibility towards the tenants while alive. The Court then also threw into the balance factors such as the Claimant had previously cared for the Deceased’s mother. It noted that there was no significant antagonism between the parties, but clearly expressed a view that the Deceased’s caution in respect of the Claimant’s children was not sufficient to merit dismissing the claim. So much so, that rather than award a life interest in the Property (which might have been thought to be the result following Ilott per Lord Jackson and In Re Myers [2005] WTLR 851 paras 89-90 and 99-101 , although clearly is permitted- Re Dennis Deceased [1981] per  Browne Wilkinson J) the Property was indeed transferred to her. This was on the basis of allowing a clean break between the parties. In addition, the Claimant was awarded £160, 000 to cover the cost of adaptations, care package and ongoing needs. 

And finally, Warner v Lewis [2017][5]. Mr Warner was the 91 year old Claimant. He lived with his partner, in her house for almost 20 years until her death. The Deceased had always been in a financially stronger position compared to the Deceased. Following her death, he had sufficient means to buy his own house. However, he wanted to remain in the Deceased’s house. While his partner had been alive, he had had no expectation of receiving anything from the Deceased’s Estate. Indeed, when it became clear that the Deceased would not survive, the Defendant’s only child Mrs Lewis, asked Mr Warner to sign a piece of paper declaring that he did not wish to make any claim on the house. He signed it. When it was lost, Mrs Lewis presented a second written “declaration”, which Mr Warner again signed. The Deceased left her entire Estate to her daughter, and brought a claim for possession of the Property. Mr Warner resisted and brought a claim under the 1975 Act. The issue was whether reasonable provision was the house, or a house- the latter he could easily buy himself. The Judge found by providing the house, the Deceased had maintained Mr Warner. The Judge considered that Mr Warner had lived in the area his whole life. The house was next door to a Doctor, who would call in an emergency. Another local person would call to check on Mr Warner. Mrs Lewis, the Judge found, was not clear as to her intentions as to the house. The Court ordered that Mrs Lewis transfer the house to Mr Warner, and Mr Warner would transfer the equivalent of the value of the house to Mrs Lewis. 

Conclusions: The Courts are willing to say who is right and who was wrong in family disputes which may well span several decades. Such disputes are usually complicated, and of course those supporting the Will will be hampered by being unable to call upon the maker to provide evidence. Clients who intend to express disapproval of their children or partners may need to be advised to keep a diary or similar written evidence to support their position once they pass away. Certainly, Mrs Jackson’s diaries were explored in the Ilott v Mitson matter. Of course, the decision as to who is to blame involves something of a moral decision. At the time of writing this article, the news is peppered with the interview of Terry Jones in 1979 when he was accused of blasphemy and funding was withdrawn for his film “The Life of Brian.” Morals, or views of what is acceptable, change over time. What a Judge may find to be unacceptable behaviour now may not be unacceptable in 30, 40 or 50 years’ time. The willingness of the Court to interpret who is to blame as being what appears to be a significant factor in deciding whether to make an award under the 1975 Act brings with it a significant degree of uncertainty.

Thomas Dumont, in his article “ Drink, Drugs and a Bohemian Lifestyle: Wellesley v Wellesley and Adult Children’s Claims”[6], points out that it may have been cheaper for the Estate to have settled the Adult Daughter’s claim given the Claimant’s likely inability to meet an order for costs. It is certainly a point to which all advisors in this field will be alive. But that really is the issue in all these cases: is the principle of testamentary freedom and wishes superior to an efficient distribution of the Estate? After all, litigation at the very least will hold up the distribution to other beneficiaries who may be entirely innocent, in addition to the emotional and financial expense. Thompson v Raggett was a case where the beneficiaries seemed to have sought to uphold the Deceased’s concerns about the Claimant’s children despite what appeared, on the face of it, a rather strong claim by the Claimant. The strength of that claim however is based on a moral judgement that the Deceased had not behaved reasonably, and we again return to the morality point referred to above. 

The upshot of these cases? Anyone wishing to mark their disproval by their Will must hope that his/her Executors will be able to show the Deceased was being reasonable in so doing. 

 

RACHEL ANTHONY

CIVITAS LAW

Taken from notes prepared for a Lecture given by Rachel on 16.1.2020