Roberts & Anor v Fresco

A potential claim under the Inheritance (Provision for Family and Dependants) Act 1975 is personal to the eligible applicant. It remains a hope or contingency until the court makes an order and is not a cause of action capable of surviving the applicant’s death under the Law Reform (Miscellaneous Provisions) Act 1934. The authorities holding that such claims abate remain good law. A deceased applicant’s estate cannot pursue the claim. On an application to amend, the court asks whether the proposed claim has a real, rather than fanciful, prospect of success; it does not conduct a mini-trial. For the statutory power to vary a nuptial settlement, a person may, depending on the facts, have been treated as a child of more than one marriage.

The claimants, beneficiaries and executors of Mr Milbour’s estate, sought to amend their claim against the defendant, the personal representative and beneficiary of Mrs Milbour’s estate. They wished to pursue a potential claim which Mr Milbour, the surviving husband, could have brought under the Inheritance (Provision for Family and Dependants) Act 1975 after Mrs Milbour’s death, but which he had not brought before his own death.

The claimants also sought to vary the settlement of the former matrimonial home under section 2(1)(f) of the 1975 Act. The court had to determine whether the first proposed claim survived Mr Milbour’s death and whether the second proposed claim had a real prospect of success.

1. Claim against Mrs Milbour’s estate. The proposed claim did not survive Mr Milbour’s death. The 1975 Act gives an eligible person a personal right to apply for an order, but that right is not itself a cause of action. Until the court has undertaken the statutory assessment and made an order, the claim remains a hope or contingency.
2. The section 3 exercise depends on the applicant’s resources, needs, age and other personal circumstances as known at the hearing. Those matters cannot properly be applied to a deceased applicant’s estate. The analogy with financial-relief claims under the Matrimonial Causes Act 1973 was therefore correct.
3. Whytte v Ticehurst [1986] Fam 64 and Re Bramwell (deceased) [1988] 2 FLR 263 were correctly decided and remained good law, although the court was not formally bound by them. The claim had therefore abated, or more accurately no proceedings should be permitted by Mr Milbour’s estate.
4. The argument based on section 3 of the Human Rights Act 1988 and Article 1 of Protocol 1 failed. Mr Milbour was deceased and his estate was neither a natural nor a legal person whose Convention property rights could be engaged.
5. The amendment test under CPR 17.3 was whether the proposed claim had a real rather than fanciful prospect of success. The proposed claim based on Mr Milbour’s unissued claim had no such prospect and the amendment was refused.
6. The claim concerning the former matrimonial home was different. The home was a nuptial settlement. Although the first claimant was not a child of Mr and Mrs Milbour’s marriage, she could on the facts have been treated by Mr Milbour as a child of that marriage as well as of his first marriage. The evidence disclosed a real prospect of establishing that relationship. The amendment was allowed, and Mr Bishop and Mr Fresco were to be joined as defendants in their capacities as trustees.

This was a first-instance decision on a preliminary issue and an application to amend the claim. Master Clark directed the hearing of the preliminary issue on 10 November 2016 and amended the order on 11 November 2016.