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Failed attempt to prevent a Claim under the Inheritance Act 1975

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Posted by Anna Sutcliffe on 23 November 2015

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Anna Sutcliffe Senior Associate

Following the recent media excitement over the case Ilott v Mitson there has been a further interesting case under the Inheritance Act.

Chekov v Fryer and Another [2015] EWHC 1642 (CH)

Background

Miss Chekov married Mr Fryer in the late 1970s and they divorced in 1981. Mr Fryer had two sons from a previous marriage. 

The Court order upon their divorce included the following provision:

Neither party shall be entitled to claim against the estate of the other under the Inheritance (Provision for Family and Dependants) Act 1975 unless the parties shall remarry”

The Deceased left a Will which distributed his Estate equally between his two children. 

Prior to the Deceased’s death he resumed living under the same roof as Miss Chekov. This was accepted by the sons however they did not accept that the relationship was akin to that of husband and wife as alleged by Miss Chekov. 

Upon Mr Fryer’s death, Miss Chekov issued a claim under the Inheritance Act. She sought to rely on Section 1(1)(1A) i.e. that during the whole period of two years prior to the Deceased passing away she was living with him in the same household and they were living as husband and wife. 

Deceased’s application to strike out the claim

The Deceased made an application seeking an order that Miss Chekov’s claim should be struck out. The basis of the Deceased’s argument was Section 15 of the Inheritance Act which states:

  1. Section 15(1) on the grant of a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter the Court, if it considers it just to do so, may, on the application of either party to the marriage, order that the other party to the marriage shall not on the death of the applicant be entitled to apply for an order under Section 2 of the Act.
  2. Section 15(3) where an order made under subsection 1 above on the grant of a decree of divorce or nullity of marriage has come into force with respect to a party to a marriage, then on the death of the other party to that marriage, the Court shall not entertain any application for an order under Section 2….

The Defendant argued that such an order was made and accordingly the Claimant was precluded from making any application under the Act. 

The Claimant’s response

The Claimant argued that the right to make a claim as a cohabitant did not exist when the divorce order was made in 1982 (it was not introduced until 1996). Meaning that the order could not exclude a right which did not exist. 

She also argued that any such order merely embodied an agreement between the parties and that in all the circumstances the agreement should not be binding. 

The final argument was that even if the order was found to be binding Section 1(1)(ba) which states that a claim may be bought by “any person (not being a person included in paragraph (a) or (b)…to whom subsection (1A) applies should be construed as allowing her to pursue a claim as a cohabitee”

The approach of the Court

Having considered matters the Court took the view that:

  1. At the time of the divorce, the parties did not contemplate that the law would change and that they were excluding a possible future claim i.e. as a cohabitee;
  2. Although a consent order is an agreement between parties, it is still an order of the Court;
  3. The reference in Section 15(1) to a person not being entitled to make a claim under Section 2, was only in respect of a claim arising under Section 1(1)(b).  Any other interpretation would produce the odd result that a person formerly married to A, but divorced and cohabiting with B, would be able to claim against B’s estate on his death.  However, a person married to B, divorced and then cohabiting with B would not be allowed to do so. 

Ultimately the Court found that the claim could not be struck out and the Defendant’s application failed. 

This case is interesting because the cost of housing means that many people getting divorced end up still living under the same roof and this could lead upon the death of one party to the surviving divorcee bringing a claim under the Act as a cohabitee. 

If you believe that you may have a claim under the Act or any other Inheritance dispute then please contact our Anna Sutcliffe on 01926 884607 for a no obligation free discussion about your matter.  

About the author

Anna Sutcliffe

Senior Associate

Anna specialises in inheritance disputes including claims under the Inheritance (Provision for Family and Dependants) Act 1975, disputes between executors and claims in respect of the validity of wills.

Anna Sutcliffe

Anna specialises in inheritance disputes including claims under the Inheritance (Provision for Family and Dependants) Act 1975, disputes between executors and claims in respect of the validity of wills.

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