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  1. Wealth
May 16, 2016updated 17 May 2016 4:48pm

Can death supersede divorce settlements?

By Spear's

Charmaine Hast and Andrew O’Keeffe on the complications of death before divorce.

The High Court case brought by Mari Vindis who is seeking a financial settlement from her late husband’s £12 million estate brings into focus the difficulties that one can encounter when dealing with a claim against a deceased estate.  That does not mean to say that divorce is easier, as it brings with it different emotional turbulence but in circumstances such as the present case, it may provide more comfort to the claimant. She did after all have divorce proceedings issued.

In this case before the High Court, the court does not turn a blind eye to what a party would receive in divorce circumstances; however in the divorce scenario there are two aspects which come into focus which are entitlement/sharing or reasonable needs. However, because this case arises following the death of the spouse, Ms Vindis’s claim is being pursued under the Inheritance (Provision for Family and Dependants) Act 1975, in which the court assesses such financial provision as it would be reasonable in all the circumstances of the case for the wife to receive, whether or not that provision is required for her maintenance.

Reasonable needs in Section 25 of the Matrimonial Causes Act require the court to have regard to ‘the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future’. Under the 1975 Act, the court will consider whether a will makes reasonable financial provision for a claimant and if not, what would be considered appropriate in the circumstances.  To do so, the court looks at those criteria set out in Section 3 of the 1975 Act, which include among others, the financial resources and needs of the applicant, the obligations towards any other applicant or beneficiary, the nature and size of the estate and any other matter which the court might consider relevant including the conduct of any party. This latter provision is not often thrown into the mix.

The question has to be asked as to whether the fact that the deceased was seemingly aware and recorded in his Will that Ms Vindis had assets worth £1 million when he decided that a further £36,000 was all that she needed will weigh on the mind of the court. The fact that a divorce petition had already been issued prior to the deceased’s death is in itself not uncommon when dealing with the circumstances as divorce is not automatically a consequence thereof, and it is the final divorce order that puts the marriage to an end.  In addition it would seem that the deceased’s sisters, aged 73 and 58, are also hoping to share in the spoils. They, together with the widow, will no doubt present competing claims.

Interestingly, in the era of human rights and testamentary freedom, the phenomena that one can leave one’s assets in one’s Will only to have it ‘upset’ by those who feel they have an entitlement despite the fact that the owner of the assets does not feel that it is appropriate might come as a shock. Does conscience play a part in the mind of these claimants, or is this all part of the new entitlement world that we live in?

Charmaine Hast is the head of family department and Andrew O’Keeffe is a partner at Wedlake Bell LLP

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