Case briefing: collusion in contracting to leave property by Will
In the recent case of Thomas Sismey v Marissa Salandron, s.11 of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) was tested by the courts for the first time. Section 11 is an anti avoidance provision; designed to prevent someone from contracting to leave property in a way so as to defeat a claim under the 1975 Act.
A timeline of the case background
- 1988 – David Sismey (the deceased) married Sheila Simsey.
- 1993 – Their child, Thomas Sismey was born.
- 2005 – David met Marissa Salandron and separated from Sheila.
- 2017 – The divorce settlement between David and Sheila was approved. This included a Deed of Covenant under the terms of which David agreed to leave the former matrimonial home to Thomas in his Will. Marissa signed the agreement to demonstrate she was aware of the contents.
- 2019 – In July, David was diagnosed with terminal cancer. He married Marissa, his fourth wife, for her to access the widow’s benefit provision in his pension.
- 2020 – David died in the New Year. The effect of their marriage was to revoke the 2017 Will and Marissa stood to inherit David’s entire estate under the intestacy rules.
Following David’s death, Thomas brought a claim seeking to enforce the Deed of Covenant. Marissa brought a counterclaim under section 11 seeking an order for her to be awarded reasonable financial provision under the 1975 Act.
Thomas was successful in his claim and the court ordered the property to be transferred to him under the terms of the enforceable Deed of Covenant.
Marissa’s counter-claim was unsuccessful because she could not prove that Sheila had failed to provide full valuable consideration; a requirement under s.11(2)(c) of the 1975 Act. Whilst the judge did find that David had made the Deed with the intention of defeating or at least reducing an application for financial provision by Marissa and that email correspondence between Sheila and David evidenced collusion between the couple with regards to the divorce settlement, the divorce settlement was still upheld and the Deed found to be enforceable.
This case has significant implications for probate, insolvency and family law. It is unique in that it is the first time that s.11 of the 1975 Act has been litigated to trial, providing valuable guidance and a salient reminder to practitioners that an application for reasonable financial provision can defeat divorce settlements. It is also unique as it upholds claims of collusion in a settlement, introducing an additional factor for practitioners to consider. From an insolvency law perspective, it demonstrates that there is a greater chance of a divorce settlement being set aside where it is found to be a transaction at an undervalue.
Overall, this case provides both guidance and uncertainty to this area of law as it widens the scope for court approved divorce settlements to be set aside.
Contact a specialist Wills and probate solicitor today
For legal advice on any aspect of Will, trusts, probate or estate administration, contact our team of specialist wills and probate solicitors on 0800 652 8025 or contact us online.