The Good, the bad and the hopeless - Shapton v Seviour [2020]

A recent judgment handed down on 6 April 2020 by Deputy Master Lloyd has got Contentious Probate practitioners talking...are too many hopeless 1975 Act claims being pursued?

Summary of the Facts

Colin Seviour died on 8 August 2016, leaving a widow, Maria Barbara Seviour (the Defendant) and two children from his first marriage, Carly (the Claimant) and Chris.  Maria also had 2 children from her previous marriage.Colin's final will dated 6 December 2013 left his entire estate to his widow, Maria.  Colin and Maria had previously made wills which provided that on the second death, their joint estates would be left equally to the 4 children.In 2017, Maria was diagnosed with Motor Neurone Disease. By the time of trial, she was wheelchair bound and had adapted the marital home so that she could remain living there (including adding a downstairs bedroom).  Maria had savings and bonds of around £57,000 and received a modest pension and benefits.Carly was aged 32 at the date of the hearing, and mother to 2 young children born in 2017 and 2019.  She and her husband both worked in the hospitality industry, and lived a comfortable lifestyle.  They lived in a house worth £240,000, had no savings and had accrued credit card debts of £20,000.The relationship between Maria and Carly is described as “toxic”, following a family argument during the Deceased's lifetime about his financial contribution towards Carly's wedding, and later about his funeral arrangements.Carly issued a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, on the last conceivable date.  It is relevant to remind ourselves here that as an adult child of the Deceased, Carly is only entitled to claim provision from the estate as is reasonable for her maintenance, taking into account the relevant Section 3 factors.During proceedings, Maria could not afford to continue instructing solicitors, and so was represented pro bono by a non-practising solicitor and McKenzie Friend, Mr Alan Johnson.“Absolutely Hopeless”Deputy Master Lloyd held that Carly's application was “absolutely hopeless” for 2 reasons:

1. The modest size of the estate.

The estate was valued at £268,000, 80% of which was tied up in the marital home, by that stage adapted to support her disability and needs.

2. Maria's “debilitating illness” meaning that “she will need every penny to live out her remaining years in dignity and comfort”.

He also noted that Carly and her husband lead a comfortable life, that the credit card and bank charges were self-inflicted, and that whilst they felt they needed a larger house, “that was never on the cards for this application”. Deputy Master Lloyd commented that Carly's claim was motivated by her sense of entitlement to ¼ of her father's estate. However, this belief was not correct, and the will was clear in its instructions. Wider Implications If you have not already seen it, I recommend reading the Law Gazette article by Maria's McKenzie Friend, Alan Johnson, which has sparked much debate about whether too many “hopeless” Inheritance Act claims are being pursued. It is not unusual for these kinds of cases to be driven by the strong emotions of a grieving family member. 

However, where those strong positions are not supported by the legal merits of the claim, this can lead to severe consequences.  In this instance, as a result of the court proceedings, Maria changed her own will, so that in addition to losing the claim, Carly was no longer a beneficiary of Maria's estate either.  This case therefore provides a prime example of a Claimant pursuing an unmeritorious claim, and ending up in a worse position than when she started. To avoid this kind of scenario, we recommend seeking advice from a contentious probate specialist at an early stage, to advise you on the legal strengths and merits of your case, the risks involved and whether it is in your interests to pursue it to trial. When is a case “hopeless”? However, and here comes the difficult bit, when is a case considered to be “hopeless”? In Shapton v Seviour, there is an undeniable imbalance between the Claimant and the Defendant's positions. 

However, not all cases are so clear, in fact they rarely are.In the well known case of Ilott v The Blue Cross and others [2017], an adult child was awarded £50,000 from her mother's estate, notwithstanding their estrangement.  However, the Supreme Court judgment only stands to highlight the wide degree of discretion that the court has when applying the Section 3 factors.  Baroness Hale confirmed that the first instance Judge was free to have made a variety of orders in properly applying the act, ranging from making no award, to making an award for income or providing housing for the Claimant. In the case of Nahajec v Fowle [2017] EW Misc 11, an adult child successfully brought a claim for reasonable provision from her father's modest estate (valued at £265,000), again in circumstances where there had been a fall out and estrangement between the Deceased and the Claimant.  The Claimant was awarded the sum of £30,000 to support her through education to train as a veterinary nurse, even though she had not expected her father to pay for her education during his lifetime. Whether or not an adult child will succeed in their claim turns on what facts the court considers to be of paramount importance in a particular case, and the weight given to each of the Section 3 factors listed in the Inheritance (Provision for Family and Dependants) Act 1975. 

It is therefore not always clear to determine whether a case is “hopeless”, or it simply carries a greater degree of litigation risk.How do I deal with the “hopeless” case?Many Defendants who find themselves defending the “hopeless” case are now left with the question of how to deal with the Claimant who, notwithstanding the legal merits of their claim, will simply not back down.There are strategic tools in a contentious probate solicitor's armoury which can be deployed when dealing with the “hopeless” Claimant.  For example, the court can order parties to engage in Early Neutral Evaluation (ENE), a process whereby the case is presented to a Judge before the final trial, and based on the evidence he or she will hand down his analysis of the legal merits of the case.  It would have been interesting to see whether in Shapton v Seviour, Carly would have abandoned her claim at an early stage if ENE had been ordered at an early stage in proceedings.Many Defendants will not have access to an Alan Johnson (as Maria did in this case), and so when faced with an unmeritorious claim they will be forced to choose between either forking out for legal fees, or dealing with the claim themselves as a litigant in person. 

Even if the Defendant succeeds in defending the claim, they will only be entitled to recover a proportion of their costs from the losing party, and only then if the other party can afford to pay.On top of the costs of defending a claim, there is also the risk that the “hopeless” claim that you are defending ends up falling into the same camp as Ilott v Blue Cross or Nahajec v Fowle, which can result in an unexpected award to the Claimant.Given these risks, you can see why there may be a practical benefit to nipping a “hopeless” case in the bud at an early stage, when the legal fees are modest and to ensure that you retain a significant slice of the pie.  However, Shapton v Seviour should serve as a warning to Claimants who have decided to “chance it”, that there can be grave consequences if you come across a Defendant who is able and willing to stand their ground.There has been debate in the industry about whether running cases on CFA's (i.e. a “no win no fee” or conditional fee agreement) has allowed the unmeritorious Claimants to pursue their claim further than they otherwise would have, in the hope of achieving a settlement. 

However, the CFA can also be a useful tool to allow a Defendant to hold their ground against the “hopeless” Claimant, who ought to think twice before pursuing their claim to trial (as in Shapton v Seviour).

If you find yourself in circumstances where you are faced with a claim, and do not have access to litigation funding, it is always worth asking the question to find out whether this kind of funding arrangement would be available or appropriate based on the facts and legal merits of your case.