• March 28, 2024
 Chance to make Inheritance Act claim dies with entitlement holder

Chance to make Inheritance Act claim dies with entitlement holder

The right to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, ends with the death of the individual who held the entitlement, the High Court has ruled.

Leaving an estate worth nearly £17 million, Pauline Milbour died in January 2014. In her will, she left her husband, Leonard Milbour, £150,000. He also had a daughter from a previous marriage, Laurel Roberts, who was not left anything in the will. Pauline’s only child, Luanne Fresco was appointed as an executor, along with her husband Carlos Fresco.

Having not made a claim against his wife’s estate, Leonard died in October 2014, leaving his own estate of £320,000 to Laurel and her daughter, Francesca Milbour.

A claim was then launched in 2015 by the pair, on behalf of Leonard. Brought against Luanne Fresco under s1(1)(a) of the 1975 Act, the claim, had it been successful, would have increased the value of Leonard’s estate and in turn, their own benefit.

As Mr Milbour had passed away when the claim was made, the court had to consider whether it could be brought at all.

Founding his decision on two legal bases, Deputy Judge Monty first highlighted the case of Whytte v Ticehurst (1986). In this High Court case, a widow had applied under the 1975 Act but passed away prior to the hearing. It was held that there was no enforceable right against the estate of the deceased and that an action would not continue to survive after her death. A similar case, Re Bramwell (1988) supported this decision, and both cases he still considered to be good law.

The second legal base was in relation to the Matrimonial Causes Act 1973. There was a recognised similarity between the financial relief claim made by a spouse under this Act and the surviving spouse claim made under the 1975 Act.  Under the 1973 Act, it is a legally established principle that an application made cannot survive against the estate of the deceased spouse.

Deputy Judge Monty did, however, draw attention to the Law Reform (Miscellaneous Provisions) Act 1934. Under this Act, the common law rule that ‘personal actions die with the person‘ had been abolished but highlighted that to be enforceable, the claim had to be a ‘cause of action’. Therefore, unless an order had been made by the surviving spouse prior to their death, this Act could not apply.

Explaining why a claim could not be made, the claimant’s representative Alexander Learmonth TEP commented: ‘[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.’

 

Georgia Owen

Georgia is the Senior Content Executive and will be your primary contact when submitting your latest news. While studying for an LLB at the University of Liverpool, Georgia gained experience working within retail, as well as social media management. She later went on to work for a local newspaper, before starting at Today’s Wills and Probate.