Trial win for spouse - the importance of engaging with litigation

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11 September, 2023

We recently succeed at trial in a claim brought for reasonable financial provision by the surviving spouse of a marriage which had endured for nearly 20 years.

The matrimonial home belonged to the deceased alone. Unfortunately, our client was almost entirely excluded from the deceased's Will. The Estate was bequeathed to our client's stepson apart from a small pecuniary legacy.

Our client was retired and lived on a state pension and small private pension. He suffered from COPD and his health was deteriorating. He was not able to improve his financial position via paid employment. It was anticipated that his deteriorating health meant that he would need access to social care at some point. He had housing needs.

The case involved a large amount of procedural wrangling and unnecessary costs owing to the failure of our opponent to engage in resolving the dispute and owing to the need to remove him as the administrator of the estate and replace him with an independent administrator. This conduct was not wasted on the judge at trial including our opponent deciding to withdraw from mediation one week before the agreed date on which it was to proceed.

At trial the independent administrator recognised that she should remain neutral but as the beneficiary of the estate did not attend the trial counsel for the administrator took the unusual step of arguing that it was appropriate for the administrator to assist the court by making arguments that were contrary to those made on behalf of our client as the Claimant. That was an approach that did not find favour with the Judge.

The Judge dismissed two arguments that were advanced by counsel for the administrator and decided:

  1. The principle of testamentary freedom was of little help in deciding the claim because no provision had effectively been made for our client.
  2. The divorce hypothesis did not impose a ceiling on the level of provision that the court could make. In reaching this decision, the judge relied upon the decision of the court in P v G and P [2006] 1 FLR 431. The judge therefore awarded our client 80% of the net estate.
  3. The judge then ordered that our opponent was to pay from his share of the estate our client's costs which had the practical effect of extinguishing his inheritance under the Will.

We acted for our client under a no win, no fee agreement and thereby empowered him to bring a claim that he would not otherwise have been able. The case serves as an example of our expertise in handling cases of this kind and a timely reminder that parties should think carefully before abandoning efforts to settle a dispute by ADR.

For more information contact Lucy Scurfield in our Contesting a Will department via email or phone on 01772 220 152. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Contesting a Will department here

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