07 December 2018 - Article
12 October 2017
Katherine McQuail of Radcliffe Chambers acted for the claimant/ respondent in securing, and then defending, a significant 1975 Act award from her partner's estate.
The defendant/ appellant was the deceased's wife, from whom he had separated but not divorced, and the sole beneficiary of his will.
On appeal, the widow sought to reduce the trial judge's award which included a half share in home he shared with the respondent.
The widow contended that the testator had not contributed to the respondent's upkeep and therefore lacked standing under the 1975 Act. That argument failed.
However the Court of Appeal decided the trial judge had overstated the respondent's needs and failed to enable 'reasonable financial provision' for all relevant parties (ie the widow).
Of particular note, the Court of Appeal held that the trial judge had erred by disregarding an existing interest in another property, which the respondent had the power to sell (but only by evicting a vulnerable sister).
Handed down only days before the Supreme Court decision in Ilott v Mitson, the decision is striking for the Court of Appeal's application of the traditional two-stage test in 1975 Act claims.
Katherine will consider the Court of Appeal's reasoning, the two-stage test post Ilott v Mitson, and lessons generally for those bringing or defending cohabitee/ dependant claims.