2019 has also seen some interesting developments in the context of Inheritance (Provision for Family and Dependants) Act 1975 proceedings.
Cowan v Foreman, 2019 EWCA Civ 1336
A much deliberated over case this year was that of Cowan which related to the legality of standstill agreements in the context of proceedings under the Inheritance (Provision for Family and Dependants) Act 1975. In these claims there is a very strict and tight time limit within which to issue the claim, being 6 months from the date of the grant of representation (s4). Often, this does not leave parties with enough time to gather together the evidence needed to prepare the case and conclude pre-action work to try to settle without recourse to court, including exploring alternative dispute resolution options, so a standstill agreement is entered into to give the parties more time.
However, in February this year, in Cowan v Foreman (2019 WEHC 349 Fam) the judge, Mr Justice Mostyn, commented that he opposed standstill agreements in the context of Inheritance Act cases and called for the end of their use. In this case, he refused the surviving spouse’s application for permission to apply for provision under the act out of time, even though the parties had entered into a standstill agreement. Mostyn J’s comments were controversial. However, some commentators argued it may well be ‘a storm in a tea cup’ and they were right; the decision was reversed on appeal in July (Cowan v Foreman, 2019 EWCA Civ 1336). Whilst an extension of the limitation period very much remains at the discretion of the court, it is open for parties to agree to a standstill as it always has been and the courts are likely to honour the agreement.
Delaforte v Flood
In other Inheritance Act news, in this case the claimant was seeking provision from the estate of her late grandmother who suffered with dementia as she had given up her career as a ballet dancer to care for her, providing 24-hour care at least 6 days a week. She was remunerated but that remuneration fell far short of a market rate what she could have earned in her own profession. T
The claimant sought an award simply to support her for three years to allow her time to establish a business as a dance teacher. Ultimately, she was successful and received an award of £110,000 from an estate of £650,000. 'That is not a reward for her plainly meritorious conduct in caring devotedly for her grandmother,' said the judge. 'It simply represents reasonable financial provision for her maintenance.’
Wellesley v Wellesley & Ors [2019] EWHC 11 (Ch)
In contrast, the High Court dismissed a claim by the estranged daughter of the 7th Earl Cowley against his £1.3M estate. She received £20,000 from his estate under the terms of his will with the remainder going into trust to provide for his fourth wife and various other family members including his son and step children.
The court found that the £20,000 the daughter received was reasonable financial provision as she could otherwise live within her own means (which included the availability to her of state benefit provision). Lady Tara Wellesley had been estranged from her father for some 30 years; she sought to argue that this was due to her step-mother forcing her out of the family but the judge held it was in fact down to her disruptive behaviour and a lifestyle of ‘drink drugs and bohemia’.
She also sought to advance human rights arguments which were simply dismissed and tried to argue that case law had established a precedent that 10% of the estate should pass to the children. This was also dismissed; each case turns on its own facts, there is no quantification of claims based on a percentage.
Lomax v Lomax (Referral to Early Neutral Evaluation) [2019] EWCA Civ 1467
In a preliminary stage in a claim under the Act, the court was asked to determine whether they could force the parties to engage in an FDR where one party refused to agree to one.
An FDR is a form of alternative dispute resolution consisting of a preliminary hearing, the aim being to narrow issues, ensure parties understand the claims and focus the mind on costs, risk and timescales involved, hopefully to facilitate early settlement discussions to avoid disputes escalating.
They have proved successful in the context of divorce, topping an 85 percent success rate. Even if settlement does not take place at the hearing itself seeds are often sown which lead to an agreed solution later.
It is accepted within the profession that alternative dispute resolution needs to be considered in every case and parties need to be willing to engage as costs consequences will otherwise follow.
At first instance, the court held they could not order it without the parties’ consent but this was reversed on appeal on the basis that it is part of the court process rather than, as with other forms of alternative dispute resolution, such as mediation, when to engage is voluntary.
Proles v Kohli 2019 EWHC 193 Ch
In a preliminary stage in a claim under the Act, the court in this case was required to determine the domicile of an Indian born entrepreneur who had lived and work for much of his life in England. His wife and adult children sought to argue that he was domiciled in India, having retained links there both emotionally and financially, continuing to spend time there and even returning there to die; in the context of it being very difficult to acquire a new domicile of choice.
However, the deceased had had an extra marital affair the product of which was a 5-year-old daughter who was seeking (through her mother as litigation friend) provision from her estate. The effect of him being Indian domiciled would be a complete defence to her claim under the Act.
In 2018, at first instance Mr Kohli was held to be domiciled in England. This was challenged on appeal this year but the decision was ultimately upheld. The court concluded that his business, professional, social and emotional connections pointed to an intention to live in England indefinitely.
