The Estate of Neil Douglas Archibald (deceased) & Anor v Alistair James Stuart & Anor

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 is personal to the applicant and does not survive the applicant’s death. A person claiming as someone treated as a child of the family must show a relationship going beyond ordinary affection, kindness, hospitality or financial assistance between parents and a child’s spouse. Permission to apply out of time is exceptional. The applicant must establish substantial grounds, and the court must assess the statutory factors in the round, including the strength of the proposed claim, delay, negotiations and estate distribution. The Act is not a bargaining tool to be deployed after disappointment with trustees’ discretionary decisions.

The claimants sought reasonable financial provision from the estates of Neil Archibald’s adoptive parents under the Inheritance (Provision for Family and Dependants) Act 1975. The preliminary issues were whether Julie Archibald had standing under section 1(1)(d), whether Neil’s claim survived his death, and whether either claimant should receive permission under section 4 to apply outside the six-month period.

Neil died after the proceedings began. Julie sought to continue his claim on behalf of his estate. The claims arose principally from dissatisfaction with the defendants’ proposed exercise of discretionary powers under the deceaseds’ will trusts.

1. Neil’s claim. Neil’s claim did not survive his death. Although Unger v Ul-Hasan established that a financial order claim may constitute a cause of action for the purposes of the Law Reform (Miscellaneous Provisions) Act 1934, a claim by a child under the 1975 Act is, on the proper construction of that Act, personal to the applicant. A deceased applicant no longer has maintenance requirements, and several statutory factors concerning the applicant’s resources, needs and disability cannot operate as intended.
2. Julie’s standing. The relevant question was whether the relationship between Julie and either deceased was one of parent and daughter, rather than the ordinary relationship of parents and daughter-in-law. The evidence showed mutual support, kindness, hospitality, gifts, financial assistance and help during illness. Those matters did not establish that Julie had been treated as a daughter in her own right or that she had assumed the responsibilities and privileges of a child. The claim under section 1(1)(d) therefore failed under both the pre-2014 and amended wording.
3. Time limits. The court would not grant permission under section 4. For Rosemary’s estate, the delay of approximately seven and a half years was substantial and there was no credible explanation beyond the claimants’ decision to await distributions under the trust. For Malcolm’s estate, the shorter delay and absence of distribution were favourable factors, but there had been no timely indication of a claim and the claims were not compelling. The alleged lack of legal advice was unsupported by disclosed evidence.
4. The claims concerning Neil were dismissed, Julie’s claims were struck out, and permission to proceed out of time was refused in any event. Costs and consequential orders were reserved.

First-instance determination of preliminary issues in claims under the Inheritance (Provision for Family and Dependants) Act 1975. No appellate history was stated in the judgment.