Reviewing wills: a salutary lesson

Reviewing wills: a salutary lesson

9 May 2018

Former solicitor Nicola Laver is a freelance legal journalist/editor and an author and legal copywriter

Once clients have executed their wills, they should be reminded to review them periodically, particularly if their circumstances change. Furthermore, in the light of a recent ruling, it may also be worth urging clients not to make assumptions as to who will die first.

In Lewis (as executrix of the estate of Audrey Blackwell, deceased) v Warner; In claim number B00GL0107 Warner v Lewis (as executrix of the estate of Audrey Blackwell, deceased) [2017] EWCA Civ 2182, 19 December 2017, the deceased, D, and her partner, Thomas Warner (W), lived together as man and wife for some 19 years in a property she owned.  W was more than eight years D’s senior, and he expected to die long before her. W left D a substantial sum under his will. However, D died first (in the event, W was around 90 years old when D died) leaving her estate to her daughter, who wanted W out of the property. 

When it became clear that her mother would not survive, D’s daughter persuaded W to sign a declaration that he did not have any claim on the house. A dispute arose, and W – who was elderly and infirm - did not want to leave the property. W rejected an offer from her that he could buy the house for £425,000, as the price was an overvaluation, but he would pay market value.

He started a claim for reasonable provision under amended subsections 1(1)(ba) and 1(1A) of the Inheritance (Provision for Family and Dependants) Act (I(PFD)A 1975.

How did the court approach his dependency claim?

The case is important as it clarifies the question of whether the court has jurisdiction under the (I(PFD)A to order that the property of a deceased person’s estate be transferred to a surviving partner for full value, and whether such a transfer can be properly regarded as ‘reasonable financial provision’ for the partner’s ‘maintenance’ for the purposes of the (I(PFD)A.

W requested relief under the (I(PFD)A, and sought an order permitting him to continue living in the property. W had strong and long-standing ties to the property; lived next door to neighbours who looked after his welfare; and the upheaval and likely consequences of him having to move should be avoided, if possible.

However, the daughter argued that allowing W to pay full market value for the property would not be ‘maintenance’ or ‘financial provision’ from the estate for the purposes of the (I(PFD)A. 

The Court of Appeal upheld the order, made by the High Court, that W should be allowed to pay £385,000 for the property, enabling him to continue living in the property for the rest of his life, with his son as a carer if and when necessary.

Notably, the Court ruled that ‘maintenance’ can include ‘an arrangement for full consideration for a property; and that someone can be in need without being short of money, where money cannot secure them what they require’ (para 15). For Mr Warner, this meant the continued occupation of his home in the absence of reasonable provision under D’s will. She had been ‘maintaining’ him by providing a roof over his head, and this had a financial value for the purposes of (I(PFD)A s1(2)(b). Such maintenance could then continue, all other requirements of the (I(PFD)A being satisfied.