Barrass v Harding

Under the Inheritance (Provision for Family and Dependants Act 1975, a former spouse must first show objectively that the deceased’s disposition failed to make reasonable financial provision. A previous divorce settlement and clean break are assessed in their historical and subsequent context. Where the former spouse accepted the settlement, received the agreed benefit and had no continuing financial or moral relationship with the deceased, later financial hardship alone does not ordinarily justify an award.

A pre-1970 settlement is not treated differently merely because later legislation would have permitted a different outcome. The size of the estate is not, without more, a special circumstance. Nor can gifts or financial assistance given by the deceased to an adult child establish a claim by the child’s former mother.

The appellant was the principal beneficiary under the deceased’s will. The respondent was his former wife, from whom he had divorced in 1964. In 1965, by consent, her ancillary-relief claims were dismissed. Separately, she received a life tenancy of a flat and later accepted £1,500 when she voluntarily left it.

The deceased subsequently made no provision for her. She applied under section 1(1)(b) of the Inheritance (Provision for Family and Dependants Act 1975. The Recorder awarded her £30,000, treating the estate’s value and the deceased’s recent gifts and insurance payments to their adult son as special circumstances. The central issue was whether that order could properly be made.

1. Appeal allowed. The Recorder’s order was set aside and the application under section 1(1)(b) of the Inheritance (Provision for Family and Dependants Act 1975 was dismissed.
2. The Act involves a two-stage process. First, the court objectively assesses whether the disposition failed to make reasonable financial provision. Only if that threshold is met does it exercise its discretion as to the provision to be made. This approach was stated in In re Coventry, Decd. [1977] 1 Ch. 461 and In re Fullard (Deceased) [1982] Fam. 42.
3. A divorce settlement must be assessed in the legislative context in which it was made and in light of later events. The approach in In re Fullard (Deceased) applied equally to settlements made before 1 January 1971. The respondent had accepted a comprehensive settlement, received the agreed consideration and thereby closed the financial account between the parties.
4. The absence of a continuing financial or moral relationship meant that the deceased’s failure to provide for the respondent was not unreasonable. Her later indigence, the size of the estate and the fact that the divorce pre-dated later statutory enlargement of matrimonial relief did not, by themselves, revive an obligation or justify an award. The reasoning in Cameron v Treasury Solicitor [1996] 2 F.L.R. 716 was applied.
5. The estate’s value was not analogous to the unexpected windfall considered in In re Hancock, Decd.. Nor could the deceased’s car gift and insurance payments to his adult son constitute special circumstances supporting a claim by the former wife. The Recorder was plainly wrong to rely on either matter.
6. There was no order for costs below. Costs in the Court of Appeal were ordered against the Legal Aid Commission, subject to it being heard; legal aid assessment was ordered.

• Court of Appeal (Civil Division): Appeal from the order of Mr Recorder Pulman QC made on 9 July 1999. The order was set aside and the application under section 1(1)(b) of the Inheritance (Provision for Family and Dependants Act 1975 dismissed.