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Interim decision reveals long-term thinking

Applicant in Smith v Smith faces uphill struggle after suggestion that court will only make an interim order if it is satisfied the applicant will have some success in their principal claim

30 September 2011

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In the case of Smith v Smith & others the court heard that the applicant (W) and the deceased (D) married in 1991. They separated in 2003 but remained married. Upon their separation W returned to her native Russia to live.

D had made a will in 1995 leaving his estate to W but, following their separation, D executed a new will leaving his estate to various relatives, who became the respondents in the case.

D died in 2009 and, upon finding that she had been cut out of D’s will, W commenced proceedings, first challenging the 2003 will on the basis that D lacked testamentary capacity and second making a claim for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (the Act). The trial date was set for January 2012.

As W and D were still married at the date of D’s death, W was able to bring a claim against D’s estate under section 1(1)(a) of the Act on the basis that D’s most recent will did not make reasonable financial provision for her. In considering a claim by a spouse or civil partner, “reasonable financial provision” means such financial provision as it would be reasonable in all circumstances for the spouse or civil partner to receive, whether or not it is required for their maintenance.

W considered that she was in need of immediate financial assistance and so, with the trial still a number of months away, she made an application for an interim order allowing her to live in the couple’s former matrimonial home and that she receive a lump sum from the estate of £25,000 pending resolution of her claim.

In order to succeed in her interim application W had to demonstrate to the court that she was in need of immediate financial assistance and that there was property in D’s estate that could be made available to meet her needs.

In evidence the court heard that W had used savings and had received loans from friends to support herself financially. W said that she required the lump sum in order to repay the loans.

However, the court considered W’s evidence was unclear at best, noting that her means during her six year stay in Russia following the breakup of the relationship was largely unexplained. The court found that W had failed to disclose material assets and income and, further, that she owned a flat in Moscow, which seemed to contradict her argument that she was living in poverty.

The court dismissed W’s interim application for a lump sum payment, finding that the repayment of the loans did not amount to a need for immediate financial assistance.

In relation to the former matrimonial property, the court found that there was no evidence to suggest that W wanted to move back to the UK and no pressing reason as to why she needed to live in the property pending resolution of the main application.

The court also commented that W’s demeanour in giving evidence was such that they foresaw a considerable struggle to remove W from the property if she were granted a temporary right to reside there. The court therefore refused W’s application to reside in the property.

Applications under section 5 of the Act are common where, for example, a widow or widower was financially dependent on their deceased spouse and, consequently, they have a pressing need for financial support pending a final decision by the court. Examples would be where a spouse required money to pay day-to-day living expenses, or to pay regular expenses such as rent or mortgage payments. In this case W failed to produce sufficient evidence to satisfy the court that her financial need was either pressing or immediate.

When a court makes its final order, section 5(4) of the Act allows the court to take into account any sums paid to the applicant following an interim order. Thus, any sums awarded to the applicant under the interim order are considered payments ‘on account’ and so will reduce the amount of the award under a final order. This suggests that a court will only make an interim order if it is reasonably satisfied that the applicant is likely to have some degree of success in their principal claim. In light of this, it seems that W may now face an uphill struggle to succeed in her principal claim.


Nick Mendoza is a solicitor at Howard Kennedy LLP

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Wills, Trusts & Probate