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'Til Death (Or Money) Do Us Part’

A photo of Matthew Button
23rd March 2023

Spouses, civil partners and the Inheritance (Provision for Family and Dependants) Act 1975

In the UK, testators have testamentary freedom, i.e. the freedom to leave their Estate to whomever they choose be it their spouse, a favourite child, a charity or a friend.

But this freedom is tempered by the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”). And this is particularly the case with regard to claims made under the 1975 Act by a disappointed spouse or civil partner.

Are spouses and civil partners treated differently under the 1975 Act where they have received less than they anticipated? In a word, yes. Such claimants can seek reasonable financial provision whether for their maintenance or not. In other words, they are not constrained by what they need for their maintenance, i.e. meeting the usual costs of living. But the 1975 Act goes even further for this class of claimant. Under Section 3(2), where a spouse or civil partner makes the application, one of the criteria the Court can consider is what they might have expected to receive if the marriage or civil partnership had been terminated by way of divorce rather than death. So having this ‘divorce cross check’ helps to act as a measure of what the applicant might receive by their 1975 Act claim.

Case update

The recent High Court ruling in Kaur v Singh (2023) provides a useful demonstration of this higher award in action. It was also an exceptionally easy 1975 Act claim to determine. Mr Singh died in 2021 and under his Will executed in 2005 he left the entirety of his Estate to his two sons. Nothing for his other children (four daughters) but most importantly, nothing to his wife of 66 years, Mrs Kaur, notwithstanding the Estate was valued at over £1.2 million and as high as £1.9 million. The Court heard the Deceased wanted his Estate to be inherited solely by the male line of the family. Yes, it still happens.

The Court heard evidence Mrs Kaur had played a significant role in the clothing business Mr Singh had run for many years. However, at the time of the trial she was living off state benefits of approximately £12,000 per year. In his judgment, Mr Justice Peel stated that throughout the 66 years of marriage, Mrs Kaur had “made a full and equal contribution” and “should receive 50% of the net value of the estate” considering that she is now left with “next to nothing”. The Estate was also ordered to bear her legal costs.

In 1975 Act claims, there is always a great degree of uncertainty in the outcome as each case will depend entirely on its own circumstances. But it is difficult to comprehend quite why such a claim got to Court in the first place given the overriding strength of Mrs Kaur’s position. The Court would have considered the divorce cross check and quite understandably, the rapid conclusion it reached was 50% of the Estate plus costs payable to Mrs Kaur. It wasn’t a particularly difficult claim to assess. The Court will always have regard to the testamentary freedom of the Deceased but that does not override fairness taking into account all the circumstances, in this case an exceptionally long marriage that allowed Mr Singh the opportunity to build a large Estate but leaving his surviving spouse to live off benefits.

But this is not to say all spouse or civil partner claims will inevitably succeed. The spouse or civil partner’s own financial status may also have a significant impact on the success of their 1975 Act claim.

In Wooldridge v Wooldridge (2016), the Deceased’s net estate was worth approximately £6.8 million. Under the terms of his homemade Will, his widow, Thandi, was left the matrimonial home and a proportion of the life policies. His shares in a construction company were inherited by his children. Thandi then commenced a 1975 Act claim, stating that she required, among other things, £372,000 a year to maintain the lifestyle she previously enjoyed alongside the Deceased. However, the fundamental issue at play was that she already possessed £10.5 million of assets in her own name and had additionally received almost £2 million by way of compensation for the crash that killed her husband. Unsurprisingly and considering her own assets, Thandi’s claim was defended on the basis she was quite simply too wealthy to require further financial provision from the Estate. The claim therefore failed as it was not deemed ‘reasonable’ for her to obtain anything.

In all 1975 Act claims, the financial status of the claimant is a fundamental consideration when the Court is assessing whether reasonable financial provision has been satisfied. This case demonstrates that a spouse is not automatically entitled to receive reasonable financial provision from the Deceased’s Estate merely because of their relationship to the Deceased and the Court will exercise its discretion with reference to all the circumstances of the claim.

If you would like to find out more about 1975 Act claims or the other contentious probate services we provide in Leicestershire & Warwickshire, please contact Matthew Button or Noel McNicholas.