Delegates at the conference could choose between five workshops, run twice over the course of the day. William Moffett recaps his key contentious probate cases from 2019
In my session, we looked at several cases which have so far caught the eye in 2019.
There have been two decisions in claims under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975) in which permission was sought to proceed out of time.
First, in Cowan v Foreman [2019] EWHC 349 (Fam), a widow’s claim for provision from the estate of her late husband was not permitted to proceed nearly 17 months after the six-month deadline (provided under section 4 of the IPFDA 1975) had expired. It was held that the widow did not have an arguable case, but that even if she had, she was too late. The judge also criticised the use of standstill agreements.
We looked at the possibility of this decision being reversed on appeal, which is indeed what the Court of Appeal has since decided.
Second, and by contrast, in Bhusate v Patel and others [2019] EWHC 470 (Ch), a widow’s claim was allowed to proceed approximately 26 years out of time – although the case had somewhat unusual facts which gave rise to considerable sympathy for the widow.
We discussed these cases and where they leave practitioners trying to predict decisions in future cases.
We also discussed the interesting case of Naylor v Barlow [2019] EWHC 1565 (Ch), in which the court had to consider whether a gift which was subject to a condition was still conditional where the named legatee had predeceased the testator, and the gift passed to that legatee’s children, pursuant to section 33 of the Wills Act 1837. The striking feature of the case was that the legatee’s children were not aware of the condition, or even of the will that contained it, before the time limit for compliance with the condition had passed. Nonetheless, on the facts of the case, the gift to them failed for want of compliance with the condition.
Finally, we discussed the commorientes rule in light of the recent news story about Mr and Mrs Scarle, who were found dead in their home. By section 184 of the Law of Property Act 1925, where two or more persons die in circumstances in which it is uncertain which died first, the statutory presumption is that they died in age order (oldest first). This can make all the difference to the question of inheritance where those who have died stood to benefit from each other’s estates. A decision in the case of the Scarles’ estates was, at the time of the conference, awaited. Given the range of instances in which, sadly, multiple deaths can still occur – from air disasters or tower block fires to the fate that befell Mr and Mrs Scarle – the rule is perhaps not as arcane as once thought.
