When someone believes they have been disinherited or ‘cut out of a Will’ it can lead to all kinds of strong emotions flaring up. This is one of the reasons why crime writers love using such events as a motive for murder! In reality, however, there are legal courses of action people can take.

One option is offered by the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA). As the name suggests, the IPFDA allows family members, and those who depended on the deceased financially, to claim for ‘reasonable financial provision’. Claims are made against the deceased’s estate (which is the term used to describe the money, property and debts someone leaves when they pass away). If successful, a Claimant will be awarded some money from the estate for their maintenance.

Many factors are considered by courts when deciding IPFDA claims. The individual circumstances of each case also play a large part in their deliberations. However, the recent case of Roberts v Fresco [2017] EWHC 283 (Ch) has affirmed a limitation which applies to all IPFDA claims: any opportunity you may have to make an IPFDA claim will not pass to your successors upon your death.

To illustrate this, let’s look at the background of the case itself.

The Background

When Pauline Milbour died in January 2014, she left an estate worth almost £17 million. Her Will, which had been made 21 years earlier, left only a small fraction of this sum to her husband, Leonard Milbour. He received £150,000 and also the income from a further £75,000 during his lifetime.

At this point, Leonard would have been able to bring a claim under the IPFDA if he had wished to do so. Indeed, the judge commented in the case that any such claim would likely have been of ‘considerable value’. However, no claim was made before Leonard himself died in October 2014.

Leonard and Pauline had no children together but both had children from previous marriages. Leonard’s beneficiaries were his daughter, Laurel Roberts, and his granddaughter, Francesca Milbour (the daughter of Leonard’s son who had died in 2004). Leonard’s estate was valued at around £320,000 and, naturally, this included the £150,000 he had inherited from Pauline.

In 2015, Laurel and Francesca brought a claim under the IPFDA. They did so in the name of Leonard’s estate, seeking to claim some of Pauline’s £17 million estate. If the claim proved successful, any funds awarded would form part of Leonard’s estate and so would then be inherited by Laurel and Francesca.

The Legal Basis of the Court’s Decision

There are many situations in which legal claims can be brought by the representatives of someone who has died. However, in order to do so, the deceased must have had what’s called a ‘cause of action’. A cause of action is essentially a right that can be enforced by bringing court proceedings, although it must be more definite than just a hope or a possibility.

As an example, if someone is killed in a car accident which was not their fault, compensation can be sought from the responsible party. The victim had a cause of action (against the responsible party) which their estate may now enforce. In essence, the representatives of the victim’s estate are making the claim where the victim is unable to do so. Any compensation awarded is not in respect of the family’s loss as such – although they may receive the compensation as beneficiaries of the estate – it is compensation for the harm done to the victim.

Laurel and Francesca’s claim failed largely due to the lack of a cause of action. The judge considered that the IPFDA only offered people the opportunity for their situation to be assessed by a court. Until that court makes a decision, the possibility for financial provision remains just that – a possibility.

As an aside, if Leonard had made a successful IPFDA claim, but died before receiving his money, he would have had a cause of action. The Court’s decision would have been sufficient to give him an enforceable right to the awarded funds. In that situation, Laurel and Francesca would then have been able to use that cause of action to make sure that the awarded funds went on to form part of Leonard’s estate.

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What could this mean for me?

There are several ways of looking at the ruling, but most significant are the perspectives of Leonard and Pauline. These illustrate the possible effects you might encounter from the ruling:

  • From Leonard’s perspective: the ruling emphasises the potentially strict limits that can be placed upon an IPFDA claim. No matter how good the prospects of success might be, if you do not make a claim, your estate’s representatives will have no way of doing so after you are gone. Leonard should have made an IPFDA claim if he had wanted to ensure a greater amount of money would be passed on to his daughter and granddaughter. However, it is unclear from the case report whether Leonard ever intended to make an IPFDA claim following his wife’s death.
  • From Pauline’s perspective: the Court’s ruling limits the extent to which the provisions of her Will could have been undermined. A controversial aspect of the IPFDA is the way in which it allows courts to effectively override someone’s Will provisions; if you do not want a close family member to inherit anything from you, and you indicate this in your Will, there is always the possibility that they will be able to claim some of your estate through the IPFDA anyway. The principles behind this ruling, however, prevent the descendants of disinherited family members from using the IPFDA to make a claim.

Need further help?

If you would like to discuss any of the topics raised in this article, or perhaps you would like advice on how the IPFDA could affect your Will, please do not hesitate to contact us.

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