Legacy loop: spring edition 2022

Insight
Published: 8th March 2022
Area: For the individual

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Taking a look at the recent case of Higgins v Morgan and others [2021] EWHC 2846 (Ch) involving a 1975 Act claim brought by an adult step-son where the court considered the claimant to have both a “moral claim” and grounds for recovering their CFA success fee.

Background to the case

A claim was brought against the estate of Stewart Higgins by his stepson, Barrie Higgins. Stewart died intestate and under the intestacy rules his estate passed to his cousins as beneficiaries and Barrie was not to benefit. Barrie alleged that Stewart had promised that Barrie would be included in his will and subsequently the distributions under the intestacy rules were against Stewart’s wishes.

Barrie was encountering financial difficulties and depended upon his wife’s profession in wedding photography, which had been impacted by the Covid-19 pandemic. Barrie subsequently brought a claim as a person treated as a child of the deceased under section 1(1)(d) of the 1975 Act. This was defended by the beneficiaries.

What was the outcome?

It was concluded that showing a need for maintenance plus a relevant relationship is generally not enough to be successful in such a claim, and that in instances where an adult child claims inheritance who is well capable of living independently, ‘something more’ was required. This included being able to demonstrate a form of moral claim.

Having regard to s.3 factors taken into consideration by the court when considering whether an award is to be made, the court awarded Barrie £40,800 for his claim, which was subsequently increased to £55,000 to take into account his success fee (as his solicitors were acting under a conditional fee agreement or “CFA”). The judge considered that the promises made to Barrie by the deceased constituted ‘some form of moral claim’ owed to Barrie. The judge also considered their close relationship in comparison to the existing beneficiaries.

What does the outcome of this case mean for charities?

This case demonstrates that something more than being a child of the deceased is required in claims where the child is now an adult. As well as having the relevant relationship to the deceased, an adult child must have a moral claim against the estate. If charity beneficiaries are faced with a claim brought against the estate by an adult child claimant, it is important to seek legal advice early to establish the true merits of that claim and the strength of the position to take in defending the claim.

The court’s attitude to recovery of CFA success fees

From a costs recovery perspective, the judgment in Hirachand v Hirachand [2021] EWCA Civ 1498 (the Re H appeal), handed down very shortly after Higgins v Morgan, provided further clarity on the Court’s willingness to consider a claimant’s CFA success fee when making an award. This significant court of Appeal judgment confirmed that awards under the 1975 Act can include a lump sum to discharge all or part of a claimant’s success fee. This decision may prove to encourage more claimants (and their solicitors) to consider pursuing a 1975 Act claim by way of a CFA.

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Jemima acts for both individuals and charities in resolving a range of contentious trusts and probate disputes and contested Court of Protection matters.

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