Analysis
Rosemary and Malcolm were the adoptive parents of Neil and his younger brother Michael. Neil married Julie in 1999 and they had two children, who were young adults by the time of the hearing. Rosemary died on 10 June 2014 and Malcolm on 14 January 2021. Neil died on 25 June 2023 after proceedings had been issued.
Rosemary and Malcolm made wills in similar terms on 26 May 2009. Rosemary made a codicil dated 23 May 2014. Both left pecuniary legacies with the residue to be held under discretionary trusts for three classes of beneficiaries: a) the surviving spouse; b) their children and descendants; and c) spouses or civil partners of the children or descendants, in each case with the income of the trust to be paid to the surviving spouse during their lifetime. A joint letter of wishes expressed the desire that the trustees pay sums of £250,000 outright to each of Neil and Michael with the remainder to be held to apply income and capital if required for the benefit of the grandchildren.
The net value of Rosemary’s estate at death was £1,534,542. Her estate was fully administered by early 2015 and the residue was vested in the defendants as trustees of the will trust. Malcolm was suffering from dementia by that time. His affairs were managed by professional attorneys for the last six years of his life and the income from Rosemary’s will trust was utilised. The net value of Malcolm’s estate on death was £842,570. The residue to pass to the will trust was £479,817.
Neil requested the defendants to divide capital between his and Michael’s families and pay out his share immediately for him to administer for the benefit of his family. He instructed solicitors in September 2021 who wrote to the defendants seeking information relating to the administration of the estates and trusts. Julie subsequently instructed the same firm. No claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) was intimated.
On 15 July 2022 the second defendant wrote to Neil’s solicitors proposing in essence the division of the trust assets between Neil and Michael’s sides of the family, providing a fund of just over £500,000 for each side. From Neil’s family fund half would be paid to Sasha, his daughter, and the remainder invested in a life insurance bond to pay the income to Neil for life with the balance to Ross, his son, on his death. In early September 2022 Neil’s solicitors advised that they were no longer instructed.
On 6 October 2023 proceedings were issued by Neil and Julie, as litigants in person, for reasonable provision from both estates under the 1975 Act and for permission to bring the claim out of time. At a further directions hearing a preliminary issues hearing was directed. It was to consider a) Julie’s standing, said to arise under s1(1)(d) of the 1975 Act on the basis she was treated as a child of the family, and b) whether permission to bring the claim out of time should be granted. Neil died following that hearing. Julie filed a statement in reply to the defendants’ evidence for the preliminary issue announcing Neil’s death and her wish to continue his claim on behalf of his estate.
Held:
A claim by a child of the deceased under the 1975 Act does not survive the death of that child. It can only be pursued while the applicant is alive. A claim was personal to an applicant. That reasoning applied, a fortiori, to claims by other classes of applicant whose right to relief was limited to such reasonable financial provision as was required for their maintenance. Any requirement for maintenance came to an end on death.
As s1(1)(d) and 3(3) of the 1975 Act were amended by the Inheritance and Trustees’ Powers Act 2014 after the death of Rosemary, it was therefore necessary to consider the differing provisions as they applied to both Rosemary and Malcolm’s deaths.
The crucial question was whether the relationship between Julie and Rosemary and/or Malcolm was one of parents and daughter as opposed to simply parents and a daughter-in-law. There was no reason to doubt that the relationship was one of mutual support and reciprocated kindness and hospitality but that did not indicate that Julie was treated as a daughter in her own right. This was supported by the terms of the wills and the joint letter of wishes which did not provide for Julie other than as Neil’s spouse or partner. There was nothing that went beyond the usual display of affection, kindness and hospitality between parents and daughter-in-law. Julie lacked standing to bring a claim under s1(1)(d) in either its original or amended terms.
Permission to bring the claims out of time were considered separately as against both estates. In relation to Rosemary’s estate, Julie sought to rely on Re Bhusate [2019]. The facts of that case were exceptional and bore no relation to the present case. Julie had not attempted to explain how the dynamics were awry or why these had affected the ability to bring the claim. The length of time which had elapsed was very substantial. The longer the delay, the more compelling the grounds would need to be to justify extending time. There was no credible explanation for the delay other than a desire to respect Rosemary’s wishes. The claims lacked compelling strength, even putting to one side the findings on the preliminary issues. There was no proper basis for extending time in relation to Rosemary’s estate.
In relation to Malcolm’s estate it was claimed that Neil and Julie had not been advised of their ability to bring a 1975 Act claim. The advice received had not been disclosed. The court could not make any findings on what advice had been received. A failure to advise might provide grounds for a professional negligence claim which would mean the applicants were not left without a remedy. The clear impression from the correspondence was that the decision to bring a 1975 Act claim only came after it became apparent that the defendants were not prepared to agree to Neil’s request. The 1975 Act was not a bargaining tool or a fall-back position. There had been no distribution of the estate, but no potential had been intimated and the claims, while otherwise arguable, were not compelling. Permission would not be granted to bring the claim out of time against Malcom’s estate.
JUDGMENT DEPUTY MASTER FRANCIS: Introduction [1] This is my determination of certain preliminary issues arising in claims under the Inheritance (Provision for Family and Dependants) Act 1975 brought by Neil Archibald, and by his wife, Julie Archibald, in respect of the estates of Neil’s late parents, Rosemary Archibald and Malcolm Archibald.1 [2] Those issues, as …Continue reading "Archibald & anr v Stewart & anr [2024] WTLR 1"