Lauren Day

Partner, Solicitor & Head of Dispute Resolution

DATE PUBLISHED: 12 Apr 2017 LAST UPDATED: 23 May 2022

Do claims under the Inheritance Act survive the death of the Claimant?

The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) makes provision for certain categories of people to make a claim against a deceased person’s estate on the basis that they have not been left reasonable financial provision (please see my previous article: Inheritance Act Claims: An Overview).

In certain types of claims, where a Claimant dies without having issued a claim, the executor(s)/administrator(s) of the estate can step into the shoes of the deceased and pursue the claim on their behalf (usually with the intention of increasing the value of the estate). The recent ruling of the High Court in Roberts v Fresco (2017) has, however, confirmed that this is not a principle which is applicable to Inheritance Act claims: the right to pursue a claim dies with the Claimant.

In the case of Roberts v Fresco, Mrs Milbour died in January 2014 leaving an estate worth £17 million of which she left her husband only £150,000 and an interest in the estate income of £75,000. Mr Milbour had a daughter by a previous marriage who did not receive anything from Mrs Milbour’s estate.

Whilst Mr Milbour could have brought an Inheritance Act claim against his deceased wife’s estate, he died in October 2014 without having done so. The executors of his estate, his daughter and granddaughter, sought to bring a claim against the estate of Mrs Milbour on behalf of Mr Milbour (stepping into his shoes as his executors).

One of the considerations of the Court in reaching their decision was the position of such claims in divorce. It is established law that an application under the Matrimonial Causes Act 1973, which is applicable in a claim for financial provision following divorce, does not survive against the estate of a deceased spouse (the reason being that an assessment of the relevant criteria would be virtually impossible after the claimant’s death).

Consideration was also given to the case of Whytte v Ticehurst [1986]. In this case, the widow of the deceased made an Inheritance Act claim seeking provision from her deceased husband’s estate. She died before the final hearing and it was held that she had no enforceable right against her deceased husband’s estate and, therefore, the action could not survive her death.

The recent decision of the High Court serves as a reminder that a person entitled to bring a claim under the Inheritance Act must do so promptly. Those faced with defending an Inheritance Act claim should also be aware of this provision.

If you wish to discuss any of the issues arising from this blog please feel free to contact me at lauren.day@ellisjones.co.uk or 01202 057760.

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