Does no claim actually mean no claim? Chekov v Fryer suggests not!
The recent case of Melita Jackson; where the court ordered her a payment from her late mother’s estate, despite that she had been expressly disinherited; demonstrates an individual’s testamentary freedom can be limited by the Inheritance (Provision for Family and Dependants) Act 1975.
The subsequent decision in Chekov v Fryer demonstrates that claims can also be brought under the Act by another class of applicants, namely ‘cohabitees’.
The background details of this case are that Mr Fryer and Miss Chekov were married in the late seventies. The marriage broke down and they were divorced in 1981. In the final divorce order, dealing with financial provision, it explicitly stated that, ‘Neither party shall be entitled to claim against the estate of the other under the Inheritance (Provision for Family and Dependants) Act 1975 unless the parties shall remarry.’ They did not remarry and upon his death, Mr Fryer left his entire estate to his two sons from a previous marriage under the terms of his will.
However, as seen in the Jackson case, the 1975 Act entitles certain categories of applicants to bring a claim if they consider that a will (or intestacy) does not make reasonable financial provision for them. Particular to this case, in 1996 cohabitees were given the right to bring a claim and in 2004, as a result of the Civil Partnership Act, civil partners and former civil partners were also added. Cohabitee encompasses anyone who, during the whole of two years before death, was living in the same household as the deceased and living ‘as the husband or wife’ of the deceased.
As Miss Chekov and Mr Fryer never re-married, the prohibition on bringing a claim for financial provision once Mr Fryer died, would appear to have been clear-cut. However, by the time of Mr Fryer’s death, Miss Chekov and Mr Fryer were living in the same property and Miss Chekov claimed that she and Mr Fryer had been ‘cohabiting’ as defined by the 1975 Act as living in the same household husband and wife. Mr Fryer’s sons accepted that they lived at the same address but denied that they had been cohabiting. They attempted to strike out Miss Chekov’s claim on the basis that the prohibition in the divorce order meant that Miss Chekov was not entitled to bring a claim, whatever her status.
Miss Chekov argued the original divorce order only prevented her bringing a claim as a former spouse. She said it did not stop her claiming as a cohabitee, not least as that right only came into existence in 1996.
The Judge agreed with Miss Chekov and found that it would be irrational if a person formerly married to A but since divorced and cohabiting with B would be able to make a claim against B’s estate on his death. Similarly a person formerly married to A, then divorced but remarried to A would be able to make claim on his death. But the same person formerly married to A but since divorced and then cohabiting with him (Miss Chekov’s scenario) would not be allowed to do so.
The Judge concluded that the statute envisages that a divorcing couple may choose to put themselves back within the 1975 Act by re-marrying and he felt it was illogical to say that somebody who has been married, then divorced, but then cohabits (rather than re-marries) cannot bring a claim as a cohabitee.
Although aspects of this case may seem unusual, the practicalities, and cost, of dividing a household in two may leave couples with no other option but to continue living together following divorce. If the nature of the relationship slips from a practical arrangement to something more like a marital arrangement, then an apparently unequivocal divorce order may no longer prohibit a claim under the Act. Of course, post-death, the availability of a claim may also tempt the survivor to argue that the post-separation relationship had, in fact, returned to one of spousal-type cohabitation!
The sons are currently pursuing an appeal and we will keep you updated on the outcome.
What do you think to the provisions under the Inheritance (Provision for Family and Dependants) Act 1975? Should testamentary freedom be capable of limitation and, specifically, do you think that cohabitees should be entitled to make a claim?