O v O & O: How not to litigate an Inheritance Act claim

I recently acted in a case involving the estate of a deceased, and a claim brought by one of the beneficiaries of the will under section 1(1)(a) of the Inheritance (Provision for Family and Dependants) Act 1975 (“I(PFD) Act 1975”).

The deceased died in April 2019. He met the claimant after the death of his first wife (with whom he had 5 children, now all adults). The claimant moved into his house and became his carer. They were married on 5 September 2012. There was a dispute between the parties as to exactly when the claimant moved into the home of the deceased but she was living there for some years before his death. He made his last will on 11 September 2013.

After the death of the deceased his sons, two of whom were executors, found his will and some documents suggesting that the claimant had been married in Nigeria previously. The sons proved the will and obtained a grant of probate. They asked the claimant to vacate the home so they could sell it, pay some secured debts and give the claimant the bequest of £50,000 left to her by the deceased who described her as his ‘friend’ in his will.

The claimant refused to leave the home and possession proceedings were commenced. The claim for possession was defended and the claimant brought a claim under I(PFD) Act 1975.

The executors of the estate defended the claim putting the claimant to proof that she was not already lawfully married before she married the deceased in 2012.

In pre-action correspondence the claimant was asked to confirm whether her earlier marriage had been dissolved. In response she produced a decree nisi and decree absolute purportedly issued by a court in Nigeria in 2010. The defendants investigated and found those documents to be forged.

When confronted, the claimant produced another set of divorce documents this time dated from 2008 and purportedly issued by a court in Nigeria. Those documents turned out to be fake documents. When asked for an explanation of this second set of fake documents, the claimant declined to provide an explanation.

Her position on the dissolution of her previous marriage remained unclear until almost 3 years after proceedings were issued. In a response to a request for further information, the claimant changed her position on her marriage. She asserted that her earlier marriage was a customary marriage in Nigeria which ended when her then husband became violent towards her causing her to leave.

In addition to the I(PFD) Act 1975 claim, the claimant challenged the validity of the will on the grounds that the signature of the testator was forged and the attesting witnesses could not be traced.

The first trial took place over 3 days in May 2023. At that hearing, the court found that the claimant was still legally married when she married the deceased in 2012. The court found her various accounts manifestly inconsistent and the court concluded that her first marriage was more likely than not a statutory marriage. The claim of a customary marriage and customary divorce failed.

That judgment left open the issue of whether the claimant qualified under section 25(4) of I(PFD) Act as a spouse.  That section defines a spouse as a person who entered into a void marriage in good faith.

At the conclusion of the first trial directions were given by the court. One direction required the claimant to provide further evidence in support of her I(PDF) 1975 Act claim. However, the claimant did not file any further evidence in support of her claim. She also failed to comply with an unless order to pay part of the cost of a handwriting expert to examine the signature on the will and to determine whether it was valid.

At the second trial over 2 days in February 2024 the only real issue before the court was the I(PFD) 1975 Act claim. The claimant’s solicitor confirmed that the claim was brought solely on the basis that the claimant was a spouse, relying on section 25(4). The claimant could have potentially brought a claim as a cohabitant relying on 2 years’ cohabitation with the deceased before his death or alternatively that she was financially dependent on the deceased. Both were probably true, but the claimant chose simply to pursue the claim as a spouse given the potentially more generous award available for that class of claimant.

In addition, unfortunately the I(PFD) 1975 Act claim was not particularised at all, and neither was any financial disclosure provided by the claimant. The claim was therefore difficult to assess and it would have been very difficult for the judge to conclude that the entitlement of £50,000 under the will did not make reasonable financial provision for the claimant.

The court concluded that the claimant had not made out, on evidence, that she had an honest belief that she could lawfully marry the deceased at the time of the marriage in September 2012.

The I(PFD) 1975 Act was therefore dismissed with costs to be determined following submissions. The claimant was left with only her entitlement under the will which is likely to be completely swallowed up by the costs of the defendants awarded for the first trial.

This is a classic example of how not to litigate a claim under I(PFD) 1975 Act. The first lesson is that claimant should bring their claim under all available heads under section 1 of the I(PFD) Act 1975. A failure to do so means that if the main claim fails, then that is the end of the road. In this case, the claimant was unable to prove that she was a spouse but had a good chance of showing that she was a cohabitant or maintained by the deceased. However, as she restricted the basis on which she brought a claim as a spousal one only, she was unable to claim in the alternative when that claim failed.

The second lesson is that financial disclosure needs to be provided by any claimant who is suggesting that the bequest in the will does not constitute reasonable financial provision. There is no way of the court assessing this in the absence of even the most basic evidence.

The final lesson is that this is CPR-governed litigation and the usual costs order is that costs follow the event. The costs consequences of a narrow minded approach to a  claim of this nature, and of failing to provide evidence, should be obvious to any competent practitioner.