Where there’s a will: ‘reasonable provision’ for the divorced or separating spouse

Family Law|May 11th 2016

‘Husband dying cost widow her £6m divorce’ read the headline in the Daily Telegraph. ‘Widow …wants half his fortune’ said the Daily Mail, and on and on it went across all the mainstream media. Of course we reported the case here too yesterday.

I went along to a very enjoyable belated birthday tea with friends at Rudding Park outside Harrogate yesterday. We all enjoyed ourselves and talk also turned to the case there. “What do you think about that woman who wants to rewrite her divorcing husband’s will?” they asked me. “Not how I see it” I said.

And this is my why. The implication of all the coverage was that contesting a will is unusual and a bit chancy. But what does the law actually say? Of course I only know what has been reported in the media about this particular case. And we cannot prejudge – but speaking in broad terms, I’d be very surprised if the widow didn’t do very well in her claim.

Why?

Death does not wipe out the debts of this deceased person if his or her estate can pay them, and exactly the same applies to the proper obligations of one spouse to another, whatever their will may say.

So let’s dispel the myths. Mrs Vindis in the case cannot actually “rewrite the will” made by her late husband. She has applied to the court on the basis her husband did not make ‘reasonable provision’ for her in his will and she will have applied for reasonable provision to be made for her under the Inheritance (Provision for Family and Dependents) Act 1975.

[Please note that what follows applies equally to same sex marriages and civil partnerships. Others too may make a claim under the Act, but this post deals only with the position of a spouse.]

This law here is straightforward and easy to follow. Section 1 of the Act allows the spouse or former spouse who has not remarried and is ‘domiciled’ in England and Wales to apply. Domicile by the way is a legal concept peculiar to us. It means more than simply being resident, probably best simply explained as having strong connections to this country more so anywhere else. But I digress.

Let’s take a look at the orders the Court has the power to make under the Act.

Powers of court to make orders:

(1)Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders:—

(a)an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order;

(b)an order for the payment to the applicant out of that estate of a lump sum of such amount as may be so specified;

(c)an order for the transfer to the applicant of such property comprised in that estate as may be so specified;

(d)an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified;

(e)an order for the acquisition out of property comprised in that estate of such property as may be so specified and for the transfer of the property so acquired to the applicant or for the settlement thereof for his benefit;

(f)an order varying any ante-nuptial or post-nuptial settlement (including such a settlement made by will) made on the parties to a marriage to which the deceased was one of the parties, the variation being for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage.

(g)an order varying any settlement made—

(i)during the subsistence of a civil partnership formed by the deceased, or

(ii)in anticipation of the formation of a civil partnership by the deceased,

on the civil partners (including such a settlement made by will), the variation being for the benefit of the surviving civil partner, or any child of both the civil partners, or any person who was treated by the deceased as a child of the family in relation to that civil partnership.

I’ve quoted the Act at length so as to make it clear that the available provisions are similar to those the court can make in a divorce: periodical payments, lump sums, transfers of property, variations of nuptial (marital) settlements. The court’s powers to deal with estates are as broad as those they can wield in divorce.

In the case of a spouse, the court is specifically required to exercise those powers and make an order along the lines of a divorce, as set out in Section 3 of the Act below. The interests of the other beneficiaries Sshould also be noted, assessed and considered, but the primary concern will be the spouse. The court will exercise its powers, and in dealing with reasonable needs, will take into account the relevant factors set out in Section 3, namely:

(1)Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

….

The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—

(a)the age of the applicant and the duration of the marriage or civil partnership;

(b)the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

. . . In the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a degree of divorce.

In the case of an application by the civil partner of the deceased, the court shall also, unless at the date of the death a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the civil partnership, instead of being terminated by death, had been terminated by a dissolution order.

Pretty clear isn’t it? Of course, without access to the full facts, we can only make reasonable assumptions about the outcome of this case. As mentioned, I have only read the media reports, and it may be there are other issues involved that have not appeared in the press but which have prevented resolution of the case without a full hearing. We will have to wait for the judgement.

But the law is clear, and it will be applied appropriately.

There is one final point I should also make. I think separating spouses should be provided for by a will that takes the law fully into account. Death can come suddenly. It’s unwise to ignore the possibility of death, either by not making a will at all, or by making a will and then gambling on there being no litigation when emotions are running at their highest after a death and when the provisions are made crystal clear causing torment for some at a time when they really need to grieve.  An estate can be ravaged by legal costs. Furthermore, to make a will which pits family members against each other, especially a parent and children, is to my mind unforgiveable. Not making a will at all can have the same effect.

On decree absolute any gift made by a will to a former spouse will automatically fail and on remarriage a will is also automatically revoked (unless it was specifically drafted in contemplation of the forthcoming marriage). But these issues can be addressed with a clear statement within a will that financial provision for a former spouse should stand.

We have a great team here at Stowe Family Law who deal with these issues often within a family where separation/divorce has occurred. Our solicitor Jane Gray, Head of the Private Client Department, will be very happy to advise further.

Author: Stowe Family Law

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