Roberts v Fresco | Seminar

  • Topic: 1975 Act claims - collateral attacks
  • Date: 29 June 2017
  • Time: 12:45 to 14:00
  • Venue: 16 Old Bailey, London, EC4M 7EG

Mark Baxter of 5 Stone Buildings represented the defendant in response to 1975 Act claims advanced by Mrs Milbour’s step-daughter and step-granddaughter.  The claimants sought to amend their claim form to bring two new claims.

First, the claimants sought to bring a 1975 Act claim by the estate of Mrs Milbour’s husband, who survived her but then died.  As the beneficiaries of his estate, they would benefit from the estate’s spouse claim.  That attempt was unsuccessful, though: it was held a 1975 Act may not be brought by the estate of a deceased claimant.

Second, the step-daughter claimant sought to bring a claim against her father’s estate for an order under s.2(1)(f) of the 1975 Act, which gives the Court power to vary nuptial settlements: if this claim succeeded, extra provision could be made for her outside his free estate by varying the trust of the multi-million pound matrimonial home.   

To succeed at trial, it would be necessary for the daughter of Mrs Milbour’s husband to prove that he treated her as a child of the family in relation to his marriage to Mrs Milbour.  Notwithstanding the conceptual and evidential questions that would raise, the Deputy Judge accepted it had a real prospect of success and should be left for a trial judge to determine on the evidence.

Mark will consider the threshold for amending to plead new claims, consider the merits of the two attempted new claims, the reasons for his mixed success, and the implications for other 1975 Act claims in the future.

 

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