Does a Family Provision Claim Survive the Death of the Proper Claimant?

Roberts v Fresco (2017) EWHC 283 Ch

The England and Wales High Court has ruled in Roberts v Fresco (2017 EWHC 283 Ch that the right to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act) ends with the death of the person who held that entitlement.

Background Facts

The case arose from the death of Pauline Milbour in January 2014, leaving an estate worth nearly GBP17 million. Although her husband, Leonard Milbour, was at that time still alive, her will left him only GBP150,000, plus an interest in the estate's income of GBP75,000. The disposition of the rest of her estate is not clear from the judgment, but it is known that she appointed as executors her only child, Luanne Fresco, and her son-in-law Carlos Fresco. Leonard had a daughter by a previous marriage, Laurel Roberts, but Mrs Milbour's will did not leave her anything.

On the death of Mrs Milbour, Mr Milbour could have brought a claim under the Act for reasonable financial provision to be made for him out of Mrs Milbour's estate, and that would have been under s 1(a) and 2(a) of the 1975 Act for:

"such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance."

However, no such claim was brought before Mr Milbour died. Mr Milbour's gross estate was £320k including the £150k he inherited under his late wife's will. By his will, Mr Milbour left his estate to the Claimants, and they were appointed as his executors. By a codicil to his will, executed a few months after his wife's death, the Defendant and her husband Mr Carlos Fresco were appointed as his executors; the Claimants remained the sole beneficiaries.

In 2015, Laurel and Francesca launched a claim against Luanna Fresco as executor of Pauline Milbour's estate, under s1(1)(a) of the Act. The claim was brought not on their own behalf, but on that of Leonard Milbour – who had, by this point, passed away. If the claim had succeeded, they would have benefited from the resultant substantial increase in the value of Mr Milbour's estate.


The court had to consider whether such a claim could be brought after the death of the party concerned. Deputy Judge Monty based his decision on two legal bases.

The first was the High Court case of Whytte v Ticehurst (1986 Fam 64), in which it was 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. Deputy Judge Monty also noted that in Re Bramwell (deceased) [1988] 2 FLR 263, Sheldon J reached the same conclusion, 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.

The second basis was the similarity between a surviving spouse's claim under the 1975 Act, and a claim for financial relief by a spouse under the Matrimonial Causes Act 1973 (MCA). It is established law that an application under the MCA does not subsist against the estate of a deceased spouse.

Deputy Judge Monty considered that the Whytte case and the similar decision in Re Bramwell remained good law. Although, he noted, the Law Reform (Miscellaneous Provisions) Act 1934 abolished the previous common law rule that personal actions die with the person, it nevertheless stated that a claim had to qualify as a ‘cause of action' to be enforceable. This, he decided, could not be the case unless an order was made before the death of the surviving spouse.

Current Legal Position in Australia

As common law authorities are limited in Australia, where an applicant for family provision dies before an award of family provision is made, the question whether the right to claim survives the death depends on the construction of the particular family provision statute.

At the same time, in Reid v Nicholls [2004] VSC 66 the principle has been strongly laid down that the right which an eligible person has to claim family provision is personal to the applicant, because assessment of the claim and deciding it involves consideration of matters wholly personal to the applicant.

In Reid, at [38] Nettle J made reference to the judgement of Zelling J in Re Wardle (1979) 22 SASR 139, concerning s 7 of the South Australian Inheritance (Family Provision) Act 1972–5:

“The real question then is: is this form of application personal to the one making it. So that by the nature of the cause of action it is not susceptible of being made by another? … The applicant therefore was entitled to have the estate which she represented reimbursed by the amount by which the estate was diminished by the deceased having to maintain or advance herself after the date of the death of her husband and before her own death in so far as that maintenance or advancement ought to have been discharged by the deceased husband if he were alive and so far as it was capable of remedy by an order made under the provisions of this Act during the lifetime of the original applicant..”