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E&W court says the right to bring family provision claim does not survive death of applicant

Thursday, 23 February, 2017

The England and Wales High Court has ruled in Roberts v Fresco (2017 EWHC 283 Ch) that the right to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ends with the death of the person who held that entitlement.

The case arose from the death of Pauline Milbour in January 2014, leaving an estate worth nearly GBP17 million. Although her husband, Leonard Milbour, was at that time still alive, her will left him only GBP150,000, plus an interest in the estate's income of GBP75,000. The disposition of the rest of her estate is not clear from the judgment, but it is known that she appointed as executors her only child, Luanne Fresco, and her son-in-law Carlos Fresco. Leonard had a daughter by a previous marriage, Laurel Roberts, but Mrs Milbour's will did not leave her anything.

Leonard Milbour could have brought a 1975 Act claim on his wife's estate, but he died in October 2014 without having done so. He left his own estate, totalling GBP320,000, to his own daughter Laurel Roberts, and her daughter Francesca Milbour.

In 2015, Laurel and Francesca launched a claim against Luanna Fresco as executor of Pauline Milbour's estate, under s1(1)(a) of the 1975 Act. The claim was brought not on their own behalf, but on that of Leonard Milbour – who had, by this point, passed away. If the claim had succeeded, they would have benefitted from the resultant substantial increase in the value of Mr Milbour's estate.

The court had to consider whether such a claim could be brought after the death of the party concerned. Deputy Judge Monty based his decision on two legal bases. One was the High Court case of Whytte v Ticehurst (1986 Fam 64), in which it was held that a surviving widow who applied under the 1975 Act, but had died before the substantive hearing, had no enforceable right against the deceased's estate and hence no cause of action that could survive her death. The other basis was the similarity between a surviving spouse's claim under the 1975 Act, and a claim for financial relief by a spouse under the Matrimonial Causes Act 1973. It is established law that an application under MCA 1973 does not subsist against the estate of a deceased spouse.

Deputy Judge Monty considered that the Whytte case and a similar decision, Re Bramwell (1988 2 FLR 263) remained good law. Although, he noted, the Law Reform (Miscellaneous Provisions) Act 1934 abolished the previous common law rule that personal actions die with the person, it nevertheless stated that a claim had to qualify as a 'cause of action' to be enforceable. This, he decided, could not be the case unless an order was made before the death of the surviving spouse.

Alexander Learmonth TEP (who was instructed by Slater + Gordon LLP to represent Laurel Roberts and Francesca Milbour) explains that they could not bring such a claim: '[C]laims under the 1975 Act are not "causes of action" and do not survive the death of the applicant, even in the case of a spouse'. Learmonth goes on to state, though, that: '[t]he court did however permit Leonard's daughter to pursue a claim against his estate to vary a nuptial settlement of the matrimonial home.'

Sources