Interim provision from an estate
Sometimes I find myself in two minds whether to write about a case. I ask myself: is the case sufficiently interesting to merit a post? Usually, of course, the answer to that question depends upon what the case was about, and what was decided. Sometimes, however, a case comes along that is not dealing with a particularly important question or involve a particularly noteworthy decision, but that still has something about it that spurs my (limited) keyboard skills into action.
So it was with the recent inheritance case regarding interim provision from an estate, Weisz v Weisz & Others.
Interim provision from an estate
The case concerned a claim by a wife for interim financial provision from the estate of her late husband. She was actually making a much bigger claim against the estate, although the judgment does not give details of exactly what she was ultimately seeking. Meanwhile, though, she sought interim provision pending the resolution of her full claim. The application for interim provision fell to be determined by Mr Justice Francis in the High Court. As we will see, he had some interesting things to say.
The relevant background to the claim was that the wife married the husband in 2005. At that time she had two children, aged 18 and 16, from a previous marriage, and the husband had three children from his previous marriage, aged 21, 18 and 15. It seems that the children all got on well with one another. Sadly, that changed after the husband died and the wife made her claim against his estate.
In December 2017 the husband made a will, under which he left his half share of the matrimonial home to the wife (who I assume owned the other half share). We are not told the value of the property, but it was subject to a mortgage under which there was some £200,000 owing. The will made no other significant financial provision for the wife.
We are also not told exactly when the husband died unless I have missed this. We are, however, told that he left an estate worth just in excess of £4 million.
The wife’s interim claim comprised three parts. Firstly, she sought interim payments at the rate of £8,511 a month. Secondly, she sought an interim payment of £20,000 in order to repay a loan, and thirdly she sought an interim payment of £55,578 to cover her legal fees.
Disproportionate costs
The first point of note from the judgment concerned what Mr Justice Francis had to say on the issue of the costs of the application:
“The starting point in relation to this case … is to express concern, if not astonishment, at the level of costs in relation to today’s application. The claimant’s costs – and this is just for today and not the claim overall – are just over £18,000. The costs of the third and fourth defendants, who are two of the children of the deceased, are £37,880 … if I take the executors’ costs as being the same as the claimant’s (and I note that the claimant has instructed – I hope I can say this without any disrespect – much less expensive solicitors than the third and fourth defendants), then that means that the overall costs of today are in the order of £74,000.
“That is to be set in the context of the total amount claimed today by the claimant of £75,000 in terms of the lump sum plus the £8,511 a month to which I have referred. It cannot be proportionate for so much money to be spent on this issue and it is very sad indeed that the parties have been unable to settle today’s application.”
Ouch.
Mr Justice Francis then suggested how the parties might avoid incurring the further, potentially much greater, costs involved if the full claim had to be decided at a contested hearing:
“…there are many forms of dispute resolution available, which are very well known to all the lawyers in this case, and I would hope that a private FDR or mediation would effectively settle this case: because somebody sitting as, whether it is a mediator or a judge or a chair of the meeting, would be able to express a very frank view, having heard not only what I have heard, which is the parties’ open positions, but having got behind the detail and looked at their “without prejudice” positions.
“That is the beauty of that process. The person who chairs those meetings really knows what people are thinking rather than seeing on paper what their positioning or posturing is, and when I say “posturing” I do not mean that there is anything dishonest about it but we all know in litigation there is the open position, which is one thing, and the “without prejudice” position, which of course I shall not and cannot know, which is something completely different in most cases.”
Hopefully, the parties will see the sense of this ‘advice’.
I do not propose to go into the detail of the rest of the judgment. Suffice to say that Mr Justice Francis awarded the wife interim payments of £5,200 per month, rejected the claim for a lump sum to repay the loan as there was no evidence that the loan had to be repaid immediately, and allowed the wife’s legal fees claim in full.
Amusing
Lastly, I wanted to mention a couple of amusing points in the judgment relating to the amount that the solicitors for the third and fourth defendants were charging.
Firstly, the wife claimed an expenditure of £1000 a year to charities, a claim which was the subject of “a most inelegant scrap”. Mr Justice Francis, however, had this to say:
“I recognise, of course, that charitable donation is entirely a matter for the individual, but given that the amount that Mrs. Weisz seeks to give each year to charities is about one hour plus VAT of the defendants’ solicitor’s time, that rather puts it all into context.”
Secondly, Mr Justice Francis made the following comment in relation to the legal fees claim:
“No complaint is made about the amount of costs sought in the sense of hourly rates because at the end of the day it is accepted, I think sensibly on behalf of the third and fourth defendants, that when their costs are running at something like twice the rate of the amount of the claimant’s costs, that I think that they probably have sensibly recognised that it would be difficult for them to criticise the rates of a firm that is actually charging something like less than half of the firm that is instructed by the third and fourth defendants.”
Well said.
The full judgment can be read here.
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