The treatment of Personal Injury damages in divorce proceedings; the risks, and the measures that every practitioner should consider
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) are on the rise. According to a Law Commission Report presented to parliament last year, it was estimated that in the past three years more than 1000 claims under the Act have been formally commenced in court. At Kingsley Napley, we have noticed a particular increase claims under the Act by spouses and cohabitees, especially where one or more the parties have been married previously and/or they have children from an earlier relationship.
The Act enables a spouse or civil partner, or any person that was cohabiting with the deceased during the whole two year period immediately before the date of death (in the manner of a spouse or civil partner), to bring a claim for ‘such provision as it would be reasonable in all the circumstances for them to receive’. Typical examples of modern family life situations where a spouse or partner might make a claim under the Act are:
Mr A divorced his first wife in 2004 after 20 years of marriage and three children together. In 2006 Mr A remarried and lived with his new wife in a house that they jointly owned for six years before passing away in 2012 following a prolonged period of ill health. Mr A’s share in his home passed automatically to his second wife under the rules of survivorship. Mr A had made a Will leaving his residuary estate to his three children. Mr A’s new wife was entirely financially dependent on Mr A having given up her job to care for him when he became unwell. Mr A’s new wife made a claim under the Act for reasonable financial provision, thereby creating a dispute with Mr A’s children over the residuary estate.
Mr and Mrs B were happily married for 10 years and had two children. In 2003, Mr B was killed in a car crash and his estate passed entirely to Mrs B. In 2005, Mrs B met Mr C and he moved in to the family home. Mrs B and Mr C were never married and in 2012 she died in a horse riding accident. Mrs B had not made a Will. Under the Intestacy Rules Mrs B’s entire estate passed to her children (the Intestacy Rules do not recognise unmarried common law partners). Mr C made a claim under the Act for reasonable financial provision, particularly focused on obtaining an order that Mrs B’s property be passed to him as he had insufficient resources to purchase his own home.
Mr and Mrs D separated in 2008 but did not formally divorce. Mr and Mrs D had one child together. In 2010 Mr D bought a house in his sole name to live in with new partner Ms E. Mr D and Ms E lived together for three years before he died. Mr D left his entire estate to his daughter. Mrs D and Ms E made separate claims under the Act for reasonable financial provision.
These cases are different to other claims under the Act. In addition to the usual factors to be taken into account in claims under the Act, the court will consider the age of the applicant, the length of the applicant’s marriage to the deceased, the applicant’s contribution to the welfare of the deceased’s family and the provision which the applicant might reasonable have expected to receive if, instead of the marriage being terminated by death, the marriage had instead been terminated by divorce (known as the ‘divorce cross-check’).
All factors are to be given equal consideration including the hypothetical ‘divorce cross-check’ insofar as the court is not limited to what would have been ordered upon divorce. The case of Lilleyman v Lilleyman involved a second wife making a claim against the estate of her late husband. In this instance the marriage had been short (just over two years) and the estate was large (over £6 million). The claim was vigorously contested by the deceased’s children from his first marriage to whom he had left the remainder of his estate. The court ruled that the Will did not make reasonable provision for Mrs Lilleyman (she had received chattels worth £17,000 and rights of occupation in the matrimonial home) and she was therefore entitled to £500,000 of enhanced provision out of the estate of her late husband. The figure was calculated by drawing a distinction between Mr Lilleyman’s matrimonial and non-matrimonial property and then applying the hypothetical divorce cross-check to those assets falling in the former category. Briggs J stated that the divorce cross-check in claims under the Act is neither a floor nor a ceiling and emphasised that “the divorce cross-check is just that, a cross-check, no more and no less. It is, like all the other matters to be taken into account under Section 3, of infinitely variable weight on the facts of each particular case”.
As with all claims under the Act, cases are fact specific but invariably one party will be financially dependent on the other and whilst automatic division should not be assumed, surviving spouses and partners have excellent prospects of success if reasonable financial provision has not been made for them. In the case of second marriages, this can be difficult for children from first marriages particularly if their other parent has also died and their estate forms part of the estate over which the surviving spouse or partner is now making a claim. Given that about two fifths of all marriages in the UK are remarriages for one or both partners, it is realistic to expect that claims under the Act will be a continued feature in the foreseeable future. In my previous blog ‘Inheritance claims by children – on the rise?’ I consider the types of claims where the shoe is on the other foot and children have not been adequately provided for.
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