In Antonio v Williams & Anor [2022] EWHC 2383 (Ch) HHJ Johns KC has made an order for reasonable financial provision in favour of Ryan Antonio, a minor treated as a child of, and maintained by the late Sharon McBean. It is a noteworthy judgment primarily because it confirms the Court can and will make orders under the Inheritance (Provision for Family and Dependants) Act 1975 prior to a grant of representation being issued.
Antonio v Williams & Anor
Case background
The claim was brought by Ryan through his father, Umar Ali, as his litigation friend. The Deceased, Ryan’s Aunt and Umar’s Sister, had owned several properties jointly with her son, Jamaal Williams, which passed to him through survivorship rather than into the Deceased’s estate. This prevented the Deceased’s Will, which made provision for Ryan by reference to those properties, from having any meaningful effect.
Umar was able to provide somewhere for Ryan to live but had relied greatly on his Sister to care and support Ryan and in her absence and without any provision from the Deceased’s estate would have clearly struggled, although little evidence was presented to establish exactly what may reasonably be needed.
Nevertheless, the Judge was willing to treat one of the properties as part of the Deceased’s net estate under section 9 of the Act to enable the estate to provide £50,000 for Ryan.
Making such an order though would be dependent on the Court having the ability to make such an order before there was any grant of representation despite the suggestion, notably in the White Book, that this may not be possible.
The Court’s decision
The Judge, in his judgment on this point, stated:
“A note in the current White Book at 57.16.6 indicates that there must be a grant of representation in place for an order for reasonable financial provision to be made under the Act.
On the hearing of a claim under the Act the personal representatives must produce the original grant of representation to the deceased’s estate. If the Court makes an order under the Act, the original grant together with a sealed copy of the order must be sent to the Principal Registry of the Family Division, First Avenue House, 42–49 High Holborn, London WC1V 6NP for a memorandum of the order to be endorsed on or permanently annexed to the grant. These requirements indicate that whilst a claim under the Act may be begun pre-grant, there needs to be a grant of representation in place before an order under the Act is made.
But there is no clear prohibition in the Act on the making of order before a grant of representation. Nor is such a prohibition in my judgment to be inferred from its other terms. While the Act does include a requirement for orders under the Act to be sent to the Principal Registry for a memorandum of them to be endorsed on the grant, that is a requirement for “every order” – see s.19(3) of the Act. It, therefore, extends to interim orders. The power to make interim orders, given by s.5 of the Act, surely cannot depend on a grant.
Such orders are needed where applicants need immediate assistance, and a claim may be brought before any grant; s.4 of the Act (as amended by the Inheritance and Trustees’ Powers Act 2014) making clear that “nothing prevents the making of an application before … representation is taken out. That requirement should not, therefore, be regarded as inconsistent with the ability to make an order before there is a grant. The other requirement referred to in the note is a requirement of the Practice Direction to Part 57. It is not a feature of the Act at all. It can anyway be read as a requirement only to produce any grant of representation.”
Comment
The clarity on this point from the Court and that there will be no issue or delay in obtaining relief where it is needed for Claimants where no grant has yet been taken out is welcome.
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