The case of Sismey v Salandron [2021] was the first-time section 11 of the Inheritance (Provision for a Family and Dependants) Act 1975 had ever been judicially considered in the United Kingdom. The case raises several interesting 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. Indeed, in the short time since determination, the case has resulted in significant implications for estate planning, family proceedings as well as insolvency law.

The Law

The Inheritance (Provision for a Family and Dependants) Act 1975 (‘‘the Act’’) enables a court to make provision out of a deceased person’s estate for certain categories of claimant in circumstances where the Court is satisfied, having regard to certain factors, that the disposition of the deceased’s estate by Will or intestacy does not make reasonable financial provision for the applicant.

The Act is a noteworthy piece of legislation, as it enables the Court to interfere with testamentary freedom, that is, the ability of an individual to leave their estate as and to whom they wish.

Section 11 of the 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’. That is, the Court can invalidate commitments made by the deceased, in his or her lifetime, if it finds that the contractual provision was entered into for the sole purpose of bypassing the Act. Section 11 is therefore an anti-avoidance provision.

The Facts

The testator in the case was, David Sismey (‘‘the Deceased’’), a man who had divorced his third wife in 2017, agreeing a divorce settlement that promised to leave the marital property by will to his son by that marriage, Thomas.

This settlement was approved by the England and Wales Family Court (EWFC) at the time, and the testator's then-girlfriend, Marissa Salandron, signed it to show she was aware of its contents. The Deceased subsequently drafted a will re-affirming the contents of the agreement.

The Deceased proceeded to marry Ms. Salandron, which had the effect of revoking said will. Sadly, the Deceased died intestate in January 2020. The estate was modest, with the net value stated on the IHT205 form to be £203,243 with the Property forming £190,000 of that figure. Thus, according to the rules of intestacy, Ms Salandron was to inherit the entirety of the Estate, including the Property.

Thomas brought a claim seeking specific performance of the contractual provision in the divorce deed. Despite having signed the settlement agreement, Ms Salandron counterclaimed under section 11 of the Act claiming that, should Thomas’ claim be allowed, the property should be used to give her ‘reasonable financial provision’ from the Deceased’s estate.

Judgment

The Judge determined that, on the facts, the Deceased had intended to defeat any future obligations to ‘reasonable financial provision’ under the Act by including the provision for Thomas in his divorce settlement agreement. However, as the Deceased’s former spouse provided full consideration for the deed, the property in question did not fall within the Deceased’s estate.

Thus, the test for Section 11 was not satisfied and as such the Judge determined that the settlement agreement (which gave the property to Thomas) took precedence over Ms Salandron’s claim for reasonable provision under the Act.

Significance

The determination in Sismey v Salandron has resulted in wide implications for estate planning, family proceedings as well as insolvency law.

The case demonstrated the importance of section 11 of the Act in reasonable financial provision claims if the necessary requirements are met. Indeed, if there had been no proper and full consideration in this case, there might have been a completely different outcome in favour of Ms. Salandron. The Judge clearly did not like that the Deceased had attempted to remove an asset from his estate deliberately to avoid a future claim but because the Deceased’s former wife would have been prejudiced, the Court could not reverse it in this particular case.

Our expert Contentious Wills and Probate team at JMW Solicitors will be able to investigate the merits of any potential claim under the Inheritance Act and provide advice on your circumstances. To speak with a member of the specialist team in relation to this or any other matter, please call JMW on 0345 241 530. Alternatively, you can fill in our online enquiry form and we will get back to you at the earliest opportunity.​​​​​​