Weisz v Weisz & Ors

Interim provision under section 5 of the Inheritance (Provision for Family and Dependants) Act 1975 requires proof of an applicant’s immediate need. The jurisdiction is distinct from maintenance pending suit or interim periodical payments under section 22 of the Matrimonial Causes Act, although the considerations may overlap.

The court must make a broad, interim assessment, having regard so far as urgency permits to the section 3 factors. Expenditure averaged over several years will generally not constitute immediate need. A debt requires evidence that repayment is presently necessary. The court may order estate-funded legal costs where this is necessary to provide a fair opportunity to pursue the claim.

The claimant, Sarah Weisz, sought interim provision under section 5 of the Inheritance (Provision for Family and Dependants) Act 1975 following the death of her husband. She applied for monthly payments, a lump sum to repay money borrowed from Scott Saunders, and payment of legal costs.

The estate had offered lower monthly provision. The central issues were whether the claimant had an immediate need, what level of interim maintenance was reasonable, whether the borrowed money fell within that concept, and whether the estate should fund her legal costs pending the final determination of the inheritance claim.

1. Interim provision. The court had power to order both periodic payments and a lump sum under section 5 of the Inheritance (Provision for Family and Dependants) Act 1975. The essential statutory condition was that the applicant appeared to be in immediate need. That jurisdiction was not identical, or broadly identical, to maintenance pending suit under section 22 of the Matrimonial Causes Act, although there were considerable overlaps.
2. Assessment of need. Immediate need was assessed in the circumstances of the case as needs arising within approximately the next year or so. The court was required to make the best broad assessment possible at an interim hearing, without attempting the detailed investigation appropriate to the final trial. Expenditure averaged over five years did not fall within immediate need. Applying section 5(3), the court had regard to the section 3 factors, including the claimant’s needs, the beneficiaries’ resources and needs, the obligations of the deceased, and the size and nature of the estate.
3. The claimant’s budget was reduced to reflect the statutory limitation to immediate need. Monthly payments of £5,200 were ordered, backdated to 5 July 2019, with credit for payments already made. They were to continue until two months after the FDR, unless the proceedings settled earlier, allowing time for renewed provision to be agreed or sought.
4. The claim for £20,000 to repay a loan was rejected. There was no evidence that the lender was about to issue proceedings or could not manage without repayment. The debt might be relevant at the final hearing, but it was not shown to constitute immediate need.
5. The court confirmed its power to order payment of a claimant’s legal costs from the estate. It was unreasonable to expect solicitors to act as creditors where the estate provided a legitimate source of funding. The claimant was not required to change solicitors, seek a conditional fee agreement, or borrow at expensive commercial rates. The full sum of £55,578 was ordered for legal costs up to and including a concluded FDR hearing.
6. The court accepted the executors’ undertaking not to make further distributions to beneficiaries, save to comply with the order, until conclusion of the claim or further order or agreement.