The High Court in Roberts v Fresco  EWHC 283 (Ch) has confirmed that claims under the Inheritance (Provision for Family and Dependants) Act 1975 are purely personal and non-inheritable and thus cannot be pursued by a claimant’s personal representatives, following the death of the claimant. That this was so appeared to be fairly well settled based upon principles derived from the matrimonial finance context and considered in two High Court cases. Nonetheless, the claimants in Roberts made a valiant, but ultimately unsuccessful, attempt to challenge this line of authority in the context of a high value estate.
Mrs Milbour died on 05 January 2014, leaving a substantial estate with a net value of £16,776,054. She left her husband only a pecuniary legacy of £150,000 and an interest in the income of £75,000.
There were no children of the marriage. Mrs Milbour had one daughter (the defendant) and Mr Milbour had two children, a daughter (the first claimant), and a son, who had predeceased him leaving a daughter (the second claimant).
Mr Milbour died on 20 October 2014, without bringing any claim under the 1975 Act against his wife’s estate, and leaving a comparatively small estate of c. £320,000 (including the £150,000 inherited from his wife).
The claimants brought proceedings against the defendant, in her capacity as personal representative of her mother’s estate, and sought to pursue, amongst other matters, Mr Milbour’s claim to provision from his late wife’s estate notwithstanding his intervening death.
A preliminary hearing was directed to deal with the question of whether or not the claimants should have permission to amend their claim to pursue the claim under section 1(1)(a) of the 1975 Act, that Mr Milbour could but did not pursue before his death.
The claimants had to sumount the difficult hurdle of overcoming High Court authority which holds that a claim under the 1975 Act, like a claim for financial provision in matrimonial proceedings, does not survive the death of the applicant.
Mr S Monty QC, sitting as a Deputy Judge of the Chancery Division, summarised the existing line of authority as follows:
“ In Whytte v Ticehurst  Fam 64, Booth J held that a surviving widow, who applied under the 1975 Act but had died before the substantive hearing, had no enforceable right against the deceased’s estate and hence no cause of action that could survive her death and be enforced by her personal representatives.
(a) The claim of a surviving spouse under the 1975 Act is in many respects similar to a claim for financial relief by a spouse under the Matrimonial Causes Act 1973 (“the 1973 Act”).
(b) An application under the 1973 Act does not subsist against the estate of a deceased spouse; the matrimonial legislation is based upon the premise that both parties to the marriage are alive. For example, a claim for secured maintenance by a divorced wife does not survive against the husband’s estate: Dipple v Dipple  P 65; and an order for unsecured maintenance for children comes to an end upon the death of the father and cannot be enforced against his estate save for payments due at the date of his death: Sugden v Sugden  P 120.
(c) Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”) abolished the common law rule that personal actions die with the person and provided that:
“all causes of action subsisting against or vested in [the deceased] shall survive against, or, as the case may be, for the benefit of, his
It is therefore imperative, for the personal representatives to bring a claim,that a cause of action has vested in the deceased before his death.
(d) In the Sugden case  P 120, 134–135, Denning LJ said that the meaning of “causes of action” extends:
“to rights enforceable by proceedings in the Divorce Court, provided that they are really rights and not mere hopes or contingencies.”
In the Divorce Court:
“there is no right to maintenance, or to costs, or to a secured provision, or the like, until the court makes an order directing it.
There is, therefore, no cause of action for such matters until an order is made … The only thing which takes a case out of the  Act is the absence of an enforceable right at the time of death.”
(e) The purpose of the 1975 Act was to place the surviving spouse in the position he or she would have been in had a matrimonial decree been granted during the lifetime of the other. The foundation of the jurisdiction is the relationship of the two parties to the marriage, and the only right that the 1975 Act gives is the right to the survivor to apply for relief against the
estate of the deceased spouse.
(f) The principles enunciated by Denning LJ in the Sugden case apply in the context of 1975 Act cases, and no enforceable right exists until an order is actually made.
(g) Further, both the 1973 Act and the 1975 Act by their explicit terms and by the very purposes for which they were enacted restrict the claim for financial relief to a spouse or surviving spouse; neither Act created a cause of action which in so far as it related to provision not required for maintenance survived for the benefit of his or her estate.
(h) The claim that may be made under both the 1973 Act and the 1975 Act is personal to the survivor and ceases to exist on the death of both parties to the marriage. There is no enforceable cause of action until an order is made on a claim. In In re Bramwell, decd  2 FLR 263, Sheldon J reached the same conclusion.
(a) It was clear from the authorities that in matrimonial proceedings a claim for financial provision neither gives rise to nor becomes a cause of action unless an order has been made in respect of it before the death of the deceased; until that time, it remains a mere hope or contingency which survives neither against nor for the benefit of the deceased’s estate. His Lordship referred to the Dipple case and the Sugden case as well as D’Este v D’Este  Fam 55 where it was held that the right to apply for variation of a post-nuptial settlement was not a cause of action within section 1(1) of the 1934 Act and did not survive for the benefit of the husband’s estate, and to Barder v Barder  AC 20 in which Lord Brandon of Oakbrook cited these cases as having been correctly decided in a speech with which the other members of their Lordships’ House agreed.
(b) The Whytte case was correctly decided.
(c) A claim under the 1975 Act is not a cause of action within section 1(1) of the 1934 Act unless an order is made before the death of the surviving spouse; until then it remains a hope or contingency of no surviving value to a deceased claimant’s estate.
(d) The provisions of the 1975 Act which set out the matters which the court is directed to have regard supports that conclusion. It would be difficult to assess the basis of such a claim, as the court is directed to do, if the claimant had died. Further, if an applicant died unexpectedly soon after an order had been made, it would be open to the respondents to reopen the matter in accordance with the principles set out in the Barder case, on the basis that new events had occurred since the making of the order which invalidated the basis on which the order had been made (in that case, the death of the wife and children for whom provision had been made in the order for a suitable home).”
The claimants sought to argue that this line of authority was merely persuasive, and was in any event wrongly decided, and that it should should be treated as having been superseded by the Human Rights Act 1998, which imported Article 1 of the First Protocol to the Convention into domestic law, and that on a true construction of the 1975 Act the right to claim survived the prospective claimant’s death.
In relation to the Human Rights Act argument, the judge held as follows:
“ In my view, this argument is flawed, for the reasons pointed out by Mr Baxter. For article 1 rights under the HRA to be engaged, there must be a “natural or legal person” who is entitled to peaceful enjoyment, and whose article 1 rights have been infringed. Mr Milbour is now deceased, and his estate is neither a natural or legal person. In my judgment, there is no scope for arguing that article 1 rights are engaged in the present case…”
And in relation to the construction of the 1975 Act, and after evaluating Court of Appeal authority in favour of the proposition that matrimonial finance claims under the Matrimonial Causes Act 1973 do not survive the death of both spouses, he held:
“ I would agree with Mr Learmonth [counsel for the claimants] that the wording of the 1975 Act does not, of itself, expressly preclude a claim being brought by the estate of a person who before his death fell within the section 1 definition of a person who could bring a claim. However, I note and agree with what Dyson LJ said in the Harb case  1 WLR 578 that had it been intended that a claim under the 1973 Act should survive for the benefit of the estate of a potential claimant, the statute would have expressly so provided. It seems to me that a similar point can be made in respect of claims under the 1975 Act; the 1975 Act does not expressly provide for such claims to enure for the benefit of a deceased’s estate. Whilst I note the doubts expressed by Dyson LJ I also note that His Lordship would have followed that line of authority and would have held that the claim was a personal one which did not amount to a cause of action.
… I agree with Mr Baxter [counsel for the defendant], … The 1975 Act gives a personal right to bring a claim, but that right is not itself a cause of action; it is a hope or contingency which falls short of being a cause of action in the sense of a state of facts which if true enable the applicant to get a remedy from the court (to paraphrase Lord Diplock’s definition). The facts are not determined until the court carries out the stage 3 exercise; until that point, the claim remains a hope. It seems to me that Denning LJ’s comment albeit obiter in the Sugden case  P 120, 135 that “The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death” is entirely correct. In the present case, for the reasons I have set out above, there was no enforceable right at the time of death and thus no cause of action.”