Berger v Berger

The appeal against an order made by HHJ Hayward Smith QC on 5 February 2013 refusing a widow permission to make an application under s2 of the Inheritance (Provision for Family and Dependants) Act 1975 was the basis of Berger v Berger. This was required because more than six years had lapsed since probate was granted, and s4 of the Act requires court permission.

The deceased, whose estate had a net value of £7.5m, appointed his widow and the two sons from his first marriage to be the executors and trustees of his will. Under the terms, the widow was entitled to his share of a foreign property, to live in the matrimonial home (or to request that the property be sold and the proceeds used to purchase a replacement property) and to a life interest in the residuary estate.

In particular, the deceased directed in his will that his trustees retain his shares in a property management company and use their best endeavours to provide his widow with a regular income.

Previously, the married couple had enjoyed income from the company made up of rental income and sales of the company’s properties.

Following the husband’s death, the company’s directors (the widow and one of the step-sons with the other step-son closely involved in decision-making) adopted a course of retaining and refurbishing the company’s properties.

While this was with a view to ultimately increasing the rental income in the future, the widow’s case was about the lack of sale proceeds from company assets inappropriately limiting the income paid to her.

The Court of Appeal found the widow did have an arguable case that reasonable provision for a spouse had not been made, but nevertheless dismissed her appeal. While the widow had expressed concern about her income position from around six months since the death of her husband, and had instructed solicitors and accountants at various points in this regard, she had not actually taken steps to challenge the will or the conduct of the trustees.

Her step-sons had been allowed to continue managing the estate and the company, and stayed in the matrimonial home as she wished.

Against the background of there being no apparent trigger for her change of heart – such as from the conduct of the respondents or extraneous factors such as a fall in interest rates (which were present in cases involving a long delay of several years where the court did grant permission to bring a claim) – it could not be “appropriate” for the appellant to be granted permission to claim under the Act.

See Berger v Berger [2013] EWCA Civ 1305

Heather Viljoen is a solicitor at Michelmores

She writes regular case updates for Private Client Adviser