The purpose of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) is to make “reasonable financial provision” for a person in circumstances where either a will, or where there is no will, the rules governing the distribution of a person’s estate known as the “intestacy rules”, fail to do so.
It is widely accepted that a right to make a claim under the Inheritance Act ends with the death of the person who would bring such a claim, such that their heirs cannot then pursue a claim on that person’s behalf.
Indeed, one of the leading texts on claims under the Inheritance Act, Francis on Inheritance Act Claims: Law, Practice and Procedure (2003), states that “The claim does not survive for the benefit of the claimant’s estate under the Law Reform (Miscellaneous Provisions) Act 1934. It, therefore, dies with the claimant.”
Nevertheless, the issue was tested in the recent case of Roberts v Fresco  EWHC 283 (Ch).
Pauline Milbour died on 5 January 2014, leaving her husband, Leonard Milbour, a legacy of £150,000 and an income in the interest of £75,000, of her circa £17m estate. Mr Milbour died on 20 October 2014. Mr Milbour did not bring a claim under the Inheritance Act in the short period of time between his wife’s and his own deaths. On Mr Milbour’s death, his estate was worth £320,000, including the £150,000 that Mrs Milbour had left him. The matrimonial home did not form part of Mrs Milbour’s estate.
By his will, Mr Milbour left his estate to the claimants. The first claimant was Mr Milbour’s daughter and the second Mr Milbour’s granddaughter (her father, Mr Milbour’s son, having died in 2004). The defendant was Mrs Milbour’s only child.
The claimants therefore issued a claim under the Inheritance Act. The issue before the court related to their application which sought permission:
“to bring the claim under section 1(1)(a) of the 1975 Act against Mrs Milbour’s estate that Mr Milbour did not himself bring before his death in 2014”.
The inherent difficulty the claimants faced in bringing the claim was the body of authority that claims under the Inheritance Act, like claims for financial provision in matrimonial proceedings, do not survive the death of the applicant.
The claimants contended that those authorities, namely Whyte v Ticehurst  Fam. 64 and Re Bramwell (Deceased)  2 FLR 263, were of persuasive authority only and had been incorrectly decided with the reasoning behind the judgments having been superseded by the Human Rights Act 1998. This was on the basis that under Article 1 of Protocol 1, ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession…’.
The claimants also sought to argue that:
- a claim under the Inheritance Act is a cause of action; the Law Reform (Miscellaneous Provisions) Act 1934 (“1934 Act”) did not define “cause of action” and the term should therefore be given the widest possible meaning;
- some actions (for example defamation claims) were expressly said not to survive under the 1934 Act and had Parliament intended to introduce further exceptions it would have done so;
- the Inheritance Act does not itself expressly limit claims to those brought by living persons or prevent the estate of a deceased from bringing a claim; and
- the purpose of the Inheritance Act was to rebalance family affairs on death, in the event that no reasonable financial provision was made.