The new Sentencing Code - what is it?
It has been alleged that the ex-partner of George Michael, Kenny Goss, may be considering issuing a claim against the singer’s estate. Goss was excluded from the singer’s Will but purportedly claims he is entitled to a monthly allowance of £15,000 as the singer provided this monthly allowance to him before their relationship broke down in 2009.
Whether this claim has or has not been issued is unclear however, it does raise some interesting issues in relation to this area of law more generally.
In England and Wales, testamentary freedom is enshrined in English law that an individual can leave their estate to whomever they wish – and exclude those who might expect to inherit something. Although a hopeful beneficiary may be disappointed by being excluded, this does not mean that a court will simply overlook the provisions in the deceased’s will. Indeed, a court will need compelling evidence that they should make a provision to an applicant.
Claims for reasonable financial provision are made pursuant to The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). These claims can be brought by a certain category of claimants, including surviving spouses (in a marriage or civil partnership) and children as well as anyone who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
This means that if someone was receiving a monthly allowance which suddenly stops when someone dies, they may be able to apply to the Court to make reasonable financial provision for them.
In this case, George Michael died in 2016, although probate was not granted until May 2019. The 1975 Act provides that potential applicants have six months from the grant of probate to make an application. If a claimant wants to make a claim after this time limit has expired, then they must make an application to Court for permission.
There is no statutory guidance on the factors which the court should take into account when considering an application for an extension of time but there are cases in which this issue has been considered.
The case of Berger v Berger  EWCA Civ 1305 concerned an application for provision which was made six years after the grant of probate had been given. In this case, the Court of Appeal refused permission for the surviving spouse to make a claim out of time. Although she had concerns regarding her income position soon after her husband’s death in 2005, it was only when her financial situation began to worsen over the following years, that her children encouraged her to seek more legal advice. Proceedings were therefore not issued until June 2012. The Court of Appeal commented that the substantial delay was not one they could overlook, notwithstanding that the estate had not yet been fully paid out, and notwithstanding that she was never advised to bring a claim. Mrs Berger was therefore not allowed to bring her claim against the estate. The crucial factor was that Mrs Berger could not clearly explain the delay.
This case demonstrates that despite having a good case, a long and unexplained delay in making an application under the 1975 Act can be fatal.
When making a claim for reasonable financial provision, it will be necessary to demonstrate that the deceased was either making a contribution of money, or money’s worth (i.e. the provision of a property which the applicant was living in) when the deceased died.
In this set of circumstances, where Mr Goss and Mr Michael separated in 2009, Mr Goss would have to evidence that Mr Michael was still providing monthly support and maintenance to Mr Goss in 2016, or that it was reasonable to expect that that support should have been continued.
Although 1975 Act claims have increased in recent years, the Court will still be mindful that, regardless of the value of the deceased’s estate, in England and Wales a person still has testamentary freedom to leave their estate to who they choose. In the absence of evidence that someone is being maintained by the Deceased, it will be difficult for an applicant to succeed in a claim for reasonable financial provision.
If you would like to discuss any of the topics raised in this blog, please contact a member of our Wills, Trusts and Inheritance Disputes team.
You may be interested in our Wills, Trusts and Inheritance Disputes web pages.
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