In a landmark case, South West law firm Coodes Solicitors has successfully defended an appeal for one of its clients who secured a £195,000 award from the estate of their deceased parent.
Last year, Hayley Gaffney at Coodes and James McKean from New Square Chambers won the significant case for claimant Patrick Fennessy brought under the Inheritance (Provision for Family and Dependants) Act 1975.
They both acted for him under Conditional Fee Agreements. Fennessy v Turner & anr [2022] WTLR 1295, was reported in the Wills and Trusts Law Reports winter edition.
The defendant, Mrs June Turner, appealed the first instance decision and permission to appeal was allowed on six grounds. The appeal was heard by the High Court last month.
The appeal was dismissed, and Mrs Turner was ordered to pay Mr Fennessy’s appeal costs which were summarily assessed.
Background
Mr Fennessy received an award at first instance from the Estate of just over £195,000 under the Inheritance (Provision for Family and Dependants) Act 1975 following a trial before Recorder Cameron. This award included reasonable financial provision to include income deficit, his housing need, furniture, and white goods and included his success fee payable under his conditional fee agreements.
In addition, having beaten his very reasonable and early Part 36 offer, Mr Fennessy was awarded his costs, largely on the indemnity basis as well as the maximum 10% penalties on the award and interest at 5% from expiry of that Part 36 Offer, all payable by Mrs Turner personally.
Important points raised
While much of the appeal turned on the facts of the case, some important points were raised:
- The deference due to trial judges in their evaluation of Inheritance Act claims was made clear. They hear the original evidence and were therefore best placed to make the decision. Fancourt J, the Judge who heard the appeal, may well have felt that the award made by Recorder Cameron was “generous” but suggested this was not beyond a “generous ambit” and was no basis for the appellate court to set it aside.
- Promises made to an adult child by a parent need not be of any particular clarity to make out a moral claim. Recorder Cameron found that promises were indeed made which gave rise to a moral claim (although this was no pre-requisite) and this finding survived the appeal.
- Testamentary freedom – the ability for people to have the freedom to leave their estate to whoever they choose in their will, and without any legal obligation to provide for any particular family member or other individual, was also addressed. The judge found that testamentary freedom was “baked into” the Inheritance Act and it had no overriding importance and there was “nothing to elevate testamentary wishes to greater importance” comparative to the other factors for consideration.
- Recorder Cameron had not made an error in not considering the parties’ costs when deciding the level of award for reasonable financial provision. One of the grounds of appeal was that, when costs were accounted for, Mrs Turner received very little of the estate. However, quite rightly, the Recorder had taken a costs-blind approach and could not have anticipated that Mr Fennessy would receive his costs, nor that this would mean that Mrs Turner received very little of the estate given that she had to pay Mr Fennessy’s costs largely on the indemnity basis.
Taking claims seriously
Fennessy v Turner is a warning to those underestimating adult child claims under the Inheritance Act considering some recent case law.
Arguments on “principle”, “testamentary freedom”, or “fulfilling the testator’s wishes” do not guarantee successfully defending such claims.
Principles can be expensive. Losses can be expensive and are incredibly difficult to appeal.
As such, they should be mediated early, a sensible offer should be made and considered carefully and claims like this should be taken very seriously.
The full transcript of the appeal is awaited. The transcript of the original Judgment can be found here.
Hayley Gaffney is a Litigation Executive (Associate) at Coodes Solicitors.
