Author: Helena Luckhurst
This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK.
Mrs Mary Sargeant’s case is a classic example of why advisers of bereaved widow(er)s are ideally placed to help their clients consider whether sufficient provision has been made for them under their deceased spouse’s Will. The problem, as Mrs Sargeant found out, is that this is sometimes not obvious even a number of months after their spouse’s death. However, the law places restrictions on how long bereaved spouses can take to try to improve their financial lot if insufficient provision has been made for them.
The Inheritance (Provision for Family and Dependants) Act 1975 allows spouses to claim against their deceased spouse’s estate for reasonable financial provision to be made for them from that estate if the Will or intestacy rules do not make such provision. The time limit for bringing such claims is six months after the grant issues, after which time permission of the court must be sought before an application can be brought. In the Sargeant case (Sargeant v Sargeant & Anor  EWHC 8 (Ch)), Mary’s husband, Joe, a farmer to whom she had been married for over 45 years, died in 2005 and the grant was obtained by Mary, their daughter Jane and the family solicitor in 2006. However, finding herself in increasing financial distress, Mary sought permission to bring a 1975 Act claim ten years later, in 2016!
Mary found herself in this position because, by his 2002 Will, Joe only left his possessions and the benefit of a £75,000 life policy to Mary outright. His remaining assets passed into a discretionary will trust. Mary, Jane and the solicitor were the trustees; Mary, Jane and Jane’s issue (but not Mary’s son Jeff from a previous relationship, or his issue) were the beneficiaries. As between Joe and Mary, Joe owned the vast majority of the assets, much of which comprised farmland worth £3,200,000 at his death but over the years came to be worth significantly more, with the potential for development. In addition, £2,000,000 of farmland passed by survivorship to Jane as they farmed in partnership.
Mary was unsuccessful in persuading the court to give permission to bring a 1975 Act claim, even though Joe’s assets remained in the will trust and had not been dissipated as such. The claim had not been made necessary by ‘any supervening event outside Mary’s control’. The judge’s observations in helping reach the conclusion that permission should not be given are worth noting:
Aside from the 1975 Act point of interest, the case raises a number of other, corollary issues. It confirms the importance of recording what advice is given to clients at the time Wills are prepared. However, the case seems to suggest that Mary should have noted her concerns about the Will terms at the time Joe’s Will was being discussed. Yet is it realistic to expect spouses, who are rarely separately represented in the Will making process, to voice concerns? Spouses rarely have any practical insight into what it means to be a beneficiary of a will trust until the experience is visited upon them after their spouse’s death. Mary’s lack of protest at the time was just one factor in the case, and not the deciding one, but should it have been given any weight at all?
The case also shows that it is unwise to delay if there are any concerns that insufficient provision has been made. Often advisers can be instrumental in helping to support clients who may, for reasons of family relations, be reluctant to explore bringing claims. There was no suggestion in the judgment that, had Mary acted on her concerns even as late as 2011, and sought permission then, permission would have been denied. Yet, as the parties only agreed to written submissions, the judge perhaps did not have the opportunity to assess through oral testimony whether Mary’s reluctance to pursue matters in 2009 may have been because of concerns about the effect that it may have had on her relationship with Jane who (perhaps unwisely, given the potential for conflict) had been made a co-trustee. We will never know if this was an issue but it is clear that Mary was ‘cut no slack’ if it was. Advisers can help their clients understand that this can be the harsh reality of how the law works.
The case also highlights an issue that I see in practice fairly regularly. Clients who are being advised by a professional retained to deal with the estate administration rarely appreciate that the professional is only advising them in their capacity as personal representative of the estate – not in their capacity as heir of the estate, if they are named as one, as well. This can lead to a lot of confusion. However, as this case makes clear, the professional is not under a duty to advise a personal representative about their position in their capacity as an heir also, unless they have agreed to do so. Until the point is well understood by clients, though, it may be helpful for professionals to make this clear in their terms.
Helena Luckhurst, Partner, Fladgate LLP (email@example.com)