FD21F00033 - [2025] EWHC 1891 (Fam)

It is not in issue that, AB being the spouse of the deceased at the date of his death, she is entitled as a matter of right to apply to the court for an order under section 2 of the Inheritance Act on the grounds that the disposition effected by his will is not such as to make reasonable financial provision for her.

Section 1(2) of The Inheritance Act provides as follows:
In this Act “reasonable financial provision”  —

Paragraph 2 of The Inheritance Act sets out the familiar menu of the wide range of orders which the court has the power to make.

Paragraph 3 of The Inheritance Act provides as follows:
Matters to which court is to have regard in exercising powers under s. 2.

For the purposes of the application, I must therefore have particular regard to the following:

The Inheritance Act followed just two years after the Matrimonial Causes Act 1973. The importation of the familiar “section 25 factors” into section 3 of The Inheritance Act gives rise to what is often referred to as “the divorce analogy” or “the divorce crosscheck”. Indeed, it is for this obvious reason that so many of these claims are heard in the Family Division. Since the seminal case of White v White [2000] UKHL 54, discrimination between spouses has, of course, been outlawed and there is a duty upon the court to carry out an appropriate assessment of the resources of the parties. This is usually referred to as “the computation stage”. In the “pre White days” when discrimination prevailed in the bigger money cases, the wife mostly being awarded her “reasonable needs” (as they were patronisingly called) and the husband retained the rest, it was sometimes thought that it was not always necessary to carry out a full-scale computation. For a time, a device was utilised by the wealthy spouse (more usually in those days the husband) which became referred to as “the millionaire’s defence”. The practice emerged for a time whereby an extremely wealthy husband did not need to give full disclosure of his resources to his wife upon divorce because he could meet her “reasonable needs, however generously interpreted”. Those days are gone. Numerous cases have sought to interpret, develop and adjust the application of the sharing principle which derived from White. An analysis of those cases in this Judgment is unnecessary but it is, it seems to me, helpful to look at what was said in this context by Sir Mark Potter P in his Judgment in the Court of Appeal in Charman v Charman [2007] EWCA Civ 1085:

“To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the property of the parties generated during the marriage otherwise than by external donation; and the consequence would have been that non-matrimonial property would have fallen for redistribution by reference only to one of the two other principles of need and compensation to which we refer in paragraph 68 below. Such an answer might better have reflected the origins of the principle in the parties' contributions to the welfare of the family; and it would have been more consonant with the references of Baroness Hale in Miller at [141] and [143] to “sharing … the fruits of the matrimonial partnership” and to “the approach of roughly equal sharing of partnership assets”. We consider, however, the answer to be that, subject to the exceptions identified in Miller to which we turn in paragraphs 83 to 86 below, the principle applies to all the parties' property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality. It is clear that both in White at p.605 F-G and in Miller at [24] and [26] Lord Nicholls approached the matter in that way; and there was no express suggestion in Miller, even on the part of Baroness Hale, that in White the House had set too widely the general application of what was then a yardstick.”

There have, of course, been very many developments and interpretations of the law since White in 2000, Miller, McFarlane in 2006 and Charman in 2007. But the central principles are derived from these cases. The reasons why I refer to these landmark cases now is to remind myself, and to explain to the parties, that: