A recent case – in which the Supreme Court dismissed a woman’s appeal for financial relief following the death of her former husband before the final determination – has highlighted the issue that death can end a litigation case, writes Georgia Stott, Senior Associate in our contentious probate and trusts team.
Unger & Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor [2023] looked at whether an ex-spouse has the right to bring an application for financial relief after having divorced overseas and it also examined whether that right survives the death of one of the parties.
The couple, Mr Ul-Hasan and Mrs Hasan, married in 1981 in Pakistan.
However, their marriage broke down and in 2012 Mr Ul-Hasan divorced his wife. His wife claimed relief on the basis that the divorce was recognised in England and Wales but Mr Ul-Hasan died before proceedings were concluded.
Mrs Hasan tried to continue proceedings against his estate but this was denied on the basis that the court decided that its power to order financial relief after an overseas divorce can only be exercised as between living parties to a former marriage.
It has been said as a result that "death ends everything".
So, does death end everything?
While it is true that some claims to contest a will are automatically brought to an end if one party dies, it is not always the case.
It is possible for a spouse to make a claim for provision from the deceased party’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Every case is considered on its own merits, of course, but if a divorce has not been finalised, a surviving spouse could make a claim for reasonable provision. In such cases, the court takes into account what the survivor may have been awarded in a divorce but is also mindful that one of the parties to the divorce has since died.
If one party to a divorce dies within twelve months from the date on which a divorce order or nullity of marriage order has been made final or a judicial separation order has been made, and certain conditions are met, the court has the power, if it thinks it just to do so, to treat the survivor as a spouse for the purposes of an Inheritance Act claim. But it would be circumstance specific.
However, if parties are divorced and an enforceable agreement is entered into by them which properly excludes claims of this nature, they would not then be able to pursue a claim.
In the Unger & Anor (in substitution for Hasan) v Ul-Hasan (deceased) and Anor [2023] case, the divorce was several years ago, so if it was valid in England, the wife would not have constituted a spouse for the purposes of making a claim against her former-spouse’s estate under the 1975 Act. But had the divorce not been recognised in the UK, this could have been an option for her.
It is important to note that on her death the right to make such a claim would have died with her. Such a claim is made against an estate, but cannot be made by an estate.
Trust claims
Trust dispute claims do not die with the trustee/a beneficiary. As it is common for homes that were once shared by a couple to be held in only one of their names, it does not prevent the non-legal owner making a claim for a beneficial interest in the property. A claim such as this can also be made against the estate of the deceased person.
Claims of proprietary estoppel – by which someone is promised they will be the ultimate recipient of land or property – do not die with the promisor either.
If a spouse or former-spouse promised an asset to the survivor, and the survivor reneged on it, they could make a claim for equitable relief against the deceased’s estate.
For example, if the survivor worked for their spouse’s business without taking a personal salary, in reliance on the promise that when the business was sold the sale proceeds would take care of both of them in their retirement, they may be able to make a claim for a share of the business.
Contractual and debt claims also generally survive death.
If an existing claim does not come to an end following the death of one party, the parties can follow a process to ensure the deceased’s estate is properly represented in the proceedings, and that the claim can continue without having to start new proceedings.
If the claim does not survive the death of a party, it might be worth considering if any alternative proceedings can be brought.
At Higgs LLP, we understand the emotional toll disputes can take. Our expert dispute resolution team work across a range of legal disciplines and our advisers draw upon many years' commercial experience to achieve the best resolution for our clients.
In all cases, we consider a combination of approaches, which could include negotiation, mediation, expert determination, early neutral evaluation and, ultimately, litigation, and we pride ourselves on our expertise and employing innovative ways to unlock disputes.
