A court judgment highlights the often turbulent and unsavoury arguments made during contentious probate disputes. We look at the Bullock v Denton and Willoughby case and its potential ramification.
Judgment in this case was recently handed down by HH Gosnell of Leeds County Court which will be of interest to contentious probate practitioners, and also those making claims for reasonable financial provision from a loved one’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act’). This is not merely because it is one of the few claims under the Act which proceeds to trial, but also due to the short and disputed nature of the relationship between the deceased and the applicant, and particularly the remarks of HH Gosnell regarding the recoverability of legal advisors’ success fees as a head of claim. HH Gosnell’s judgment may have potentially revolutionary implications as before now it was thought that such costs were unrecoverable.
Shoosmiths acted for Ms Bullock in what the judge described as “hard-fought” litigation. Shoosmiths argued that Ms Bullock was a cohabitee and partner of the late Mr Denton, with whom she had been in a relationship for approximately four years at the time of his death and as such was entitled to reasonable financial provision under the Act. By his will, Mr Denton gifted the entirety of his £2m estate (constituted in large part by a farming business and associated properties) to his brother, making no provision for Ms Bullock. Notably, in his instructions for his will, Mr Denton expressly told his solicitors that he did not have a partner. The nature of the relationship was a hotly disputed issue at trial.
Given that Ms Bullock had received no provision from Mr Denton’s estate, she issued a claim for reasonable financial provision, both as a dependent and as a person with whom Mr Denton had been cohabitating with as an unmarried partner for least two years before his death. In accordance with section 1(2)(b) of the Act, Ms Bullock’s claim was limited to provision for her maintenance.
It was necessary for Ms Bullock to bring her claim, given that she was reliant on Mr Denton for accommodation and payment of household bills (save for food) in the years preceding his death. She was also in a precarious financial position. She worked full-time as a carer, with an income deficit of £200-300 per month, and had subsisting credit card and loan debts which she had incurred during her relationship with Mr Denton. As such, she was unable to re-home herself or meet her monthly outgoings. Ms Bullock faced subsequent eviction by the estate given that her home had been gifted in the will to Mr Denton’s brother.
By contrast, the defendants (being the executor and beneficiary of Mr Denton’s will) argued that Ms Bullock should not receive provision to meet all her needs. While they asserted no financial need for their inheritance, they argued that that Ms Bullock did not deserve accommodation security as she was merely a housekeeper to whom Mr Denton had offered accommodation for fear that she and her pets would homeless. These arguments were made despite expert handwriting evidence which concluded that, on the balance of probabilities, that Mr Denton had written Valentine’s Day and Christmas cards to Ms Bullock referencing their romantic relationship.
A further point of contention between the parties was the purpose of Ms Bullock’s temporary move into a rented accommodation for a period of seven months in 2015 during the relationship. Ms Bullock maintained that the move was not a sign of difficulty in her relationship with Mr Denton, or an indication that it had ended, but merely an escape from the persistent interference of Mr Denton’s friends in their relationship.
Aside from the above, another argument the defendants advanced was that Ms Bullock’s claim as a dependent under the Act had been satisfied by her rent-free occupation of Mr Denton’s property since his death until the date of the court hearing.
After considering the evidence, HH Gosnell made a finding of fact that Ms Bullock and Mr Denton were cohabitating as man and wife for the requisite two-year period before his death, and that their relationship would have persisted but for his untimely death. He did not, therefore, accept the defendant’s arguments that reasonable financial provision had already been made or could be made by allowing Ms Bullock to occupy the estate property for an additional two years.
Instead, he awarded Ms Bullock a life interest trust so that she could live rent free in a property for life valued at £140,000, to be administered by independent trustees at further cost to the estate. Additionally, he made capital provision of £70,000 to be spent on removal expenses; a new car; a contribution to paying Ms Bullock’s outstanding debts; replacing elderly white goods; and, very interestingly, meeting a significant proportion of her legal advisors’ success fees.
While every case turns on its specific facts, this case is notable in demonstrating that even short and fairly unconventional relationships can still entitle an eligible cohabitee to more than paltry provision from the estate if need is present. In this respect, Ms Bullock had clear maintenance needs which could reasonably be satisfied without significant consequence to the defendants.
More interesting still are HH Gosnell’s comments regarding the recoverability of the legal advisors’ success fees from the estate as part of a claim. For parties acting on a no win no fee agreement, a success fee is an extra charge that ordinarily has to be paid by claimant if their claim succeeds. It is not a cost that can be recovered from the losing party and as such reduces what successful applicants walk away with after their case concludes.
Most practitioners take the view that, since the Jackson Reforms in 2013, legal advisors are precluded from recovering their success fees from the other party in the event of their success. However, for what is considered the first time since the Jackson Reforms, Shoosmiths made the successful argument that a success fee was a liability that Ms Bullock would have to meet should the court accept her case, and that they should therefore be considered as a debt under section 3(a) of the Act.
HH Gosnell agreed, citing the comments of Mr Justice Briggs (as he then was) in the case of Lilleyman v Lilleyman  Ch 225 to the effect that, without any consideration for the parties’ cost liabilities, judges’ attempts to award appropriate provision for successful applicants under the Act are prone to be undermined.