Dellal: An unusual case

It is not unusual to see a widow bring a family provision claim (under the Inheritance (Provision for Family and Dependants Act 1975) against the estate of her late husband, where through a misplaced assessment of the modest needs of the spouse or sheer caprice, the husband fails to make any or any adequate provision for her.

It is relatively unusual however for the widow who has been bequeathed the entire estate to nonetheless bring a claim, but that was exactly the position in the recent case of Dellal v Dellal [2015] EWHC 907 which came before Mostyn J on a strike out application.

The Claimant was the widow of the late “legendary property developer”, Jack Dellal, and was left his entire estate valued at £15.4M. However, the Deceased’s latest entry in the Sunday Times Rich List  estimated his fortune at £445M, and so the actual estate was alleged by the widow to be “an absurd presentation of the true scale of his personal wealth at his death” – though the judge noted that such estimates were, for many reasons,  not reliable in practice.

Additionally, it was alleged that the Deceased was living as a man whose lifestyle (gambling etc)  was demonstrative of a substantial annual income well in excess of his annual salary and that he was, within the 6 year period prior to death, engaged through one investment vehicle or another in substantial and profitable deals, and was contemplating further such deals before his death consistent with access to substantial funds.

Essentially, the Claimant’s case was that the Deceased was much wealthier than disclosed by the estate account, and by inference, the vast discrepancy of assets and access to ready funds was explicable by the use of trusts.

Of course, she was not seeking an order for reasonable provision out of the actual net estate, but out of the deemed net estate, including (s10 of the Act) dispositions intended to defeat applications for financial provision.

The problem for the Claimant was that whilst there was a background of substantial access to wealth, she had to show, as against any particular family defendant, that within 6 years prior to death there was a disposition by the Deceased in their favour, or to them as trustees – with identifiable trust assets remaining, with the intention on his part of defeating a claim under the Act and that the court should exercise its discretion to make an order for payment into the estate of an appropriate amount so as to facilitate the making of an award in favour of the Claimant.

The Claimant could not, it was pointed out, presently identify a particular transaction in favour of a defendant, nor any evidence in support of the relevant intention motive on the part of the Deceased (though there was a letter written by him in 1952 prior to his first marriage making it clear that his assets should pass to blood relations allegedly showing a strong bias in favour of retaining assets within the family), and that there was nothing to warrant the court exercising its discretion at trial.

The tension therefore was between the weak and inferential nature of the case at its early stage and the possibility that specific disclosure would clarify the basis of the Deceased’s asset profile, his possible use of trusts under his control and access to ready funds, and provide an evidential basis for the exercise of discretion.

The court expressed the view, consistent with the approach of Vos J in Arsenal Football Club Plc v Elite Sports Distribution Ltd [2002] EWHC 3057 (Ch), that whilst the evidence in support of the s10 applications was “thin” and “almost entirely inferential”, that it was nonetheless more than a “speculative punt” and he would therefore not accede to the strike out applications without considering the outcome of specific disclosure.

This case, somewhat unusual on its outline facts, demonstrates the fine line between on the one hand, Micawberism, where the Claimant hopes that ‘something will turn up’ by way of some crucial piece of evidence or testimony and, on the other hand, a prima facie claim where the wider factual matrix points to a decent possibility of favourable developments.

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