Roberts & Anor v Fresco [2017] EWHC 283 (Ch)

17 February 2017

Application for permission to amend a claim form and consideration of whether a potential Inheritance Act claim by a surviving husband against his late wife’s estate abates on his death


  • The First and Second Claimants were H’s daughter and granddaughter respectively; the Defendant was W’s daughter, acting as the personal representative of W’s estate.
  • W died on 5 January 2014 and H died on 20 October 2014.
  • Upon her demise W’s estate was worth over £16.5m net, excluding the FMH which was then held by trustees for the benefit of the First Claimant. W left little to H in her will (a pecuniary legacy of £150,000 and an interest in the income of £75,000). W left nothing to the First Claimant, nor to H’s son (the Second Claimant’s father).
  • On 17 June 2015, the Claimants applied under the Inheritance Act 1975 as against the Defendant. They subsequently brought this application for permission to amend the original claim form such that they could:
  1. bring a claim (vicariously) against W’s estate on behalf of H for financial provision, pursuant to s.1(a) and 2(a) of the Inheritance Act 1975; and
  2. make a claim in relation to H’s estate so as to vary the settlement of the FMH, pursuant to s.2(1)(f) of the Inheritance Act 1975.


  • Mr Monty QC, sitting as a Deputy Judge of the Chancery Division, dismissed the first limb of the Claimants’ application as it stood no reasonable chance of success.
  • As with a claim under the Matrimonial Causes Act 1973, a claim pursuant to the Inheritance Act 1975 does not survive the death of the notional applicant.
  • Until an order is made in respect of a claim, it is not a cause of action; it remains a mere hope or contingency, which survives neither against (nor for the benefit of) the estate of the notional applicant.
  • The judge rejected the Claimants’ argument based on Article 1 of the ECHR since H’s estate was neither a natural nor legal person.
  • The judge allowed the second limb of the First Claimant’s application as there was a real prospect of her establishing that she was treated by H and W as a child of the marriage. She was therefore granted permission to amend the claim form to include an application for a variation of a nuptial settlement.
  • However, it was conceded that the Second Claimant did not fall within s.2(1)(f), being neither a party to the marriage, nor a child of the marriage, nor having been treated as a child of the family in relation to that marriage. As a result, the Second Claimant’s application was dismissed entirely.