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Where there's a will . . .

View profile for Janet Moreton
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. . . there could still be arguments . . .

. . . as Mary Jane Cowan discovered when her husband died in 2016.  

Michael Cowan, the man who invented the black bin-liner, left his £16m Estate in the control of Will trustees, with the intention that it would eventually default to a charitable foundation. 

His widow, Mary, struggled to get access to funds from the trustees, despite the fact that Michael had requested in a letter of wishes that Mary was to be regarded as the principal beneficiary.  She was surprised to find that she was at the mercy of the trustees, and wouldn’t receive funds outright, and even more surprised to discover that her home was owned by a company owned by the trust.

Some 17 months after Michael’s death, and after the trustees questioned Mary’s medical expenses, she decided to lodge a claim for reasonable financial provision from the estate. 

The Inheritance (Provision for Family and Dependants) Act 1975 allows for a spouse, civil partner, former spouse or former civil partner who is not remarried/in new civil partnership, child (of any age), person treated by the deceased as a child of the family, or a dependent of the deceased to apply to court for reasonable financial provision from an Estate.    

However, under the Act, claims must be initiated within six months after the grant of probate, and because Mary’s claim was outside of that statutory period, she needed the court’s permission to proceed.  The trustees objected to her claim on the grounds that it was outside the time period allowed.

The High Court denied her claim to proceed on the grounds that her claim for reasonable financial provision was bound to fail and that the delay in bringing the claim wasn’t excusable.  Justice Mostyn, rationalised that allowing her claim to go forward was “tantamount to saying that every widow has an entitlement to outright testamentary provision from her husband.” He also condemned the common practice of agreeing a “standstill”, meaning an agreement to suspend the usual limitation period for bringing a claim, which the parties had done in this case in an attempt to mediate the dispute out of court first.

The Court of Appeal has now overturned the High Court’s decision, dismissing Justice Mostyn’s opinion, and criticising his failure to consider the length of the couple’s relationship (25 years), among other factors, and found that there was a proper explanation for the delay in bringing the case.

One of the team representing Mary remarked:  “The Court of Appeal has comprehensively rejected the idea that leaving a widow at the mercy of trustees (who are on the other side of the world) is a reasonable approach” and also added that “the Court of Appeal has made it very clear that trying to resolve claims without rushing to Court is to be encouraged.”

This decision is an important one, particularly in situations where the person making the Will has failed, beforehand, to talk to the beneficiaries about how much and how they will inherit, leaving the beneficiaries unable to ask questions or voice concerns while the grantor is still alive.

In Mary’s case, the court will now be able to consider her claim of whether the provision made in the Will is reasonable.

If you believe you’ve been unfairly left out of a will, or are unsure  whether an Estate is being administered properly, contact our expert team now.  Please email Janet Moreton or call our Contested Wills team on 0800 118 1500 to find out how we can help you.

 

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