Landmark Judgment: Grant of Probate, in a case of co-owned property. Antonio v Williams and McBean

Further facts

The High Court has handed down a landmark Judgment making an order for reasonable financial provision prior to the Grant of Probate having been obtained in a claim brought by a minor child under Section 3 of the Inheritance (Provision Family and Dependents) Act 1975 (‘the 1975 Act’). 

HHJ Johns KC determined some noteworthy issues arising in a claim brought by a minor child by his litigation friend for reasonable financial provision from the Estate of the Deceased on the basis that he had been treated as child of the family by the Deceased, who was his aunt.  The claim was brought against the First Defendant, the Claimant’s uncle, and one of the beneficiaries of the Estate.  The Second Defendant, the Claimant’s grandmother and mother of the Deceased was joined as she was a co-owner of two of three properties alleged by the First Defendant to form part of the Estate.  

The Judgment considers and provides helpful guidance on the application of the relevant law and authorities in respect of whether an order for reasonable financial provision can be made in the absence of a Grant of Representation and whether the Deceased’s severable share in jointly-owned property should form part of the Estate for the purposes of making an order for reasonable financial provision.  

Comment

Issues for the Court. The Court had to determine the following:

1. Whether the Claimant was being treated as a child of the family by the Deceased;
2. Whether Claimant was being maintained by the Deceased prior to her death;
3. Whether the Deceased’s Will failed to make reasonable financial provision for the Claimant;
4. Whether provision for reasonable financial provision for the Claimant should be made from the Deceased’s severable share of three properties and whether such shares should form part of the Estate of the Deceased. 
5. Absent the Grant of representation whether the Court could make an order for reasonable financial provision.

 The Court found that:

1. The Claimant was treated as a child of the family by the Deceased, who took on the role of a mother to the Claimant and the Deceased’s maintenance of the Claimant extended to the bulk of his everyday needs.
2. The Deceased’s Will made no financial provision for the Claimant at all, which represented a failure to make reasonable financial provision for the Claimant.  Whilst the Will purported to do so out of two of the properties, neither of those properties could form part of the Estate without an order under Section 9(1) of the 1975 Act, which represented a failure to make reasonable financial provision for the Claimant. 
3. The Deceased had a severable share in one of the properties co-owned by the Second Defendant, but that property should not form part of the Estate for the purposes on making an order for reasonable financial provision for the Claimant; it had not been earmarked by the Deceased in her Will as a source of provision for the Claimant. 
4. Reasonable financial provision should be facilitated by treating the property co-owned by the First Defendant as part of the Estate of the Deceased.   
5. The Court proceeded to consider whether it could make an order for reasonable financial provision in the absence of a grant and found there was no clear prohibition in the 1975 Act on the making of an order before a Grant of Representation, nor was such a prohibition to be inferred from its terms. 

The Court was satisfied there was sufficient evidence for the Court to reach its conclusions, particularly where the Claimant was at an early stage of life, noting that in Ilott v. The Blue Cross and others [2017] UKSC 17 the Court a broad-brush approach was called for and the exercise under the 1975 Act was not a mathematical one. 

Held

The Court agreed with the submissions of all of the parties and held it was able to make an order for reasonable financial provision for the Claimant absent the Grant of Representation in favour of the Claimant in the sum of £50,000; ordering further that the Deceased’s severable share in the property co-owned with the First Defendant be treated as part of her net estate to facilitate that provision. 

Date of Judgment: 22nd September 2022

Dr. Sarah Egan, instructed by Andrew Bishop of Shoosmiths LLP, appeared for the Second Defendant