Can a claim under the Inheritance Act supersede divorce settlements?

The Court has considered for the first time, whether the terms of a divorce settlement can be enforced as against a claim for reasonable provision under section 11 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

The case of Sismey v Salandron [2021] 10 WLUK 372 raises questions as to the freedom of a testator to give their property to whoever they choose and the Court’s ability to interfere in the same.

What does Section 11 of the Act say?

The Act generally permits the Court to intervene in circumstances where ‘reasonable financial provision’ has not been made in a Will for a certain group of applicants (e.g spouse and children).

Section 11 of Act serves specifically to restrict a testator’s ability to enter into contracts for the purpose of defeating his or her obligations to make ‘reasonable financial provision’ under the Act. If the Court decides that the testator, prior to his death enters a contract giving away his assets to another person in order to circumvent the ‘reasonable financial provision’ requirement, then the contract can be disapplied under the Act.

It is also worth noting that in order to be successful in a Section 11 claim, the claimant must show (amongst other things) that when the contract was made, full consideration was given by the parties.

The facts (Sismey v Salandron)

In the case, Thomas Sismey (T), the son of the Deceased issued a claim to enforce a divorce settlement agreement between the Deceased and T’s mother prior to the Deceased’s death. The contents of the agreement (which was also signed by the Deceased’s then partner Ms Salandron) explicitly stated that the Deceased promised to leave his property to his son (T) once he passed away. He subsequently made a Will re-affirming the contents of the agreement.

Two years after the divorce was finalised, the Deceased was diagnosed with cancer and married Ms Salandron shortly afterwards. The idea was that Ms Salandron would be able to claim widow’s benefit from the Deceased’s pension.

The marriage had the effect of revoking the Deceased’s Will (where he left the property to T). This left Ms Salandron as the sole beneficiary of the estate under the laws of intestacy – thereby disinheriting T. T issued a claim against the estate for the property based on the settlement agreement from his parents’ divorce.

Despite having signed the settlement agreement, Ms Salandron counterclaimed under section 11 of the Act claiming that the property should be used to give her ‘reasonable financial provision’.

Decision

Although the Court found that there was evidence that the divorce settlement was ‘collusive’ and may have prejudiced Ms Salandron, it also refused to disapply it. This was because in making its decision, the Court found that full consideration was given by both T’s mother and father given that rights to the Deceased’s pension was safeguarded for Ms Salandron as a result of the agreement. The test for Section 11 could not be fully met and as such the Court ordered that the settlement agreement (which gave the property to T) took precedence over Ms Salandron’s claim for reasonable provision.

Comments

This case has an impact on both family and probate law.

For family lawyers, the Court’s finding of collusion (which is rare when the divorce settlement has been approved by the Court) poses questions as to how such settlements should be drafted and if the promise of property should be included especially given it can be overridden by the Court post-death.

From a probate standpoint, although the decision upheld the terms of the divorce settlement, the case has demonstrated the importance of section 11 in reasonable financial provision claims if the relevant requirements are met. If there was shown to be no valid consideration in the Sismey case, then we may have seen a completely different outcome in favour of Ms Salandron.

If you have any queries about the inheritance act or divorce proceedings, our specialist probate solicitors in Enfield and the family law team are ready to assist. Please contact us on 020 3417 385 or complete our online form. 

The information given here is intended for general information purposes only and should not be taken as legal advice.