Roberts & Anor v Fresco

Roberts & Anor v Fresco

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 by a surviving spouse does not survive the death of the applicant; it is a personal right and not a cause of action unless an order is made before death. The application to amend the claim form to enable the estate to bring such a claim stands no real prospect of success and is dismissed. However, the claim to vary the nuptial settlement for the benefit of the First Claimant as a child treated by the deceased as a child of the family has sufficient prospects and is allowed.

Parties
First Claimant: Laurel Marilyn Roberts; Second Claimant: Francesca Milbour; Defendant: Luanne Fresco
Jurisdiction
England and Wales
Judgment Date
17 February 2017
Procedural Posture
Civil / Ruling on Preliminary Issue and Application to Amend Claim
Outcome
Application to amend claim to bring deceased spouse's claim dismissed; application to amend claim to vary nuptial settlement allowed.
Legal Topics
Inheritance Act Claims, Survival of Claims After Death, Variation of Nuptial Settlements
Succession Family Law Inheritance Act Claims Survival of Claims After Death Variation of Nuptial Settlements

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Parties

Laurel Marilyn Roberts

First Claimant

Francesca Milbour

Second Claimant

Luanne Fresco

Defendant

Procedural Posture

Civil / Ruling on Preliminary Issue and Application to Amend Claim

Legal Issues

  1. 1 Does a potential Inheritance Act claim by a surviving spouse abate on the death of the spouse?
  2. 2 Can the estate of a deceased spouse bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
  3. 3 Does the court have power to vary a nuptial settlement for the benefit of a child or dependant under section 2(1)(f) of the 1975 Act?

Ratio Decidendi

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 by a surviving spouse does not survive the death of the applicant; it is a personal right and not a cause of action unless an order is made before death. The application to amend the claim form to enable the estate to bring such a claim stands no real prospect of success and is dismissed. However, the claim to vary the nuptial settlement for the benefit of the First Claimant as a child treated by the deceased as a child of the family has sufficient prospects and is allowed.

Court Disposition

Application to amend claim to bring deceased spouse's claim dismissed; application to amend claim to vary nuptial settlement allowed.

Orders

  • No proceedings permitted by the estate of Mr Milbour under the 1975 Act.
  • Amendment allowed in respect of claim to vary nuptial settlement for benefit of First Claimant.