Spouse’s right to claim under the Inheritance Act does not survive for the benefit of their estate (High Court) by Practical Law Private Client

10 March, 2017

A surviving spouse’s right to make a claim for financial provisionfrom a deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 does not survive the spouse’s death, the High Court has held. (Roberts v Fresco [2017] EWHC 283 (Ch)).

The High Court has held that, where a surviving spouse had not made a claim for financial provision from a deceased’s estate before he himself also died, the surviving spouse’s right to make that claim under section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975) would not survive the spouse’s death. Although the IPFDA 1975 did not preclude such a claim being brought by a deceased claimant’s estate after they had died, had it been intended that the benefit of a claim could survive their death the statute would have provided for it expressly.

The IPFDA 1975 gave a personal right to bring a claim but that right was not a cause of action until the court had analysed the relevant facts presented by the claimant in the context of the criteria set out in section 3. Until that point, there was no enforceable right that could pass to the claimant’s personal representatives.

As with the Matrimonial Causes Act 1973, an assessment of the relevant criteria would be virtually impossible after the claimant’s death as many were based on the assumption that the claimant spouse was still alive at the date of the hearing.

Case: Roberts v Fresco [2017] EWHC 283 (Ch) (Bailii).

If you would like to discuss  the above please contact Philip Youdan at philip.youdan@crippspg.co.uk.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.