Appeal success for Coodes’ client in landmark case

Wed 21st Dec 2022

Earlier this year Hayley Gaffney at Coodes Solicitors wrote a blog about a landmark decision in the case of Fennessy v Turner & anr [2022] WTLR 1295, as reported in the Wills and Trusts Law Reports, where she acted with James McKean of New Square Chambers for Mr Fennessy, the claimant, under a conditional fee agreement (no win, no fee).

Mr Fennessy received an award at first instance of just over £195,000 under the Inheritance (Provision for Family and Dependants) Act 1975 following a trial before Recorder Cameron. This award included reasonable financial provision for income deficit, housing need, furniture and white goods and included his success fee payable under his conditional fee agreement.

In addition, having beaten his very reasonable and early Part 36 offer, Mr Fennessy was awarded his costs, largely on the indemnity basis, payable by Mrs Turner personally.

The defendant, Mrs Turner, appealed the decision and permission to appeal was allowed on six grounds. The appeal was heard by the High Court earlier this month.

The appeal was dismissed, and Mrs Turner was ordered to pay Mr Fennessy’s appeal costs which were summarily assessed.

Important points raised

While much of the appeal turned on the facts of the case, some important points were raised:

  • The deference due to trial judges in their evaluation of Inheritance Act claims was made clear. They hear the original evidence and were therefore best placed to make the decision. Fancourt J, the Judge who heard the appeal), may well have felt that the award made by Recorder Cameron was ‘generous’ but suggested this was not beyond a ‘generous ambit’ and was no basis for the appellate court to set it aside.
  • Promises made to an adult child by a parent need not be of any particular clarity to make out a moral claim. Recorder Cameron found that promises were indeed made which gave rise to a moral claim (although this was no pre-requisite) and this finding survived the appeal.
  • Testamentary freedom – the ability for people to have the freedom to leave their estate to whoever they choose in their will, and without any legal obligation to provide for any particular family member or other individual, was also addressed. The judge found that testamentary freedom was ‘baked into’ the Inheritance Act and it had no overriding importance and there was ‘nothing to elevate testamentary wishes to greater importance’ comparative to the other factors for consideration.
  • Recorder Cameron had not made an error in not considering the parties’ costs when deciding the level of award for reasonable financial provision. One of the grounds of appeal was that, when costs were accounted for, Mrs Turner received very little of the estate. However, quite rightly, the Recorder had taken a costs-blind approach and could not have anticipated that Mr Fennessy would receive his costs, nor that this would mean that Mrs Turner received very little of the estate given that she had to pay Mr Fennessy’s costs largely on the indemnity basis.

Taking claims seriously

Fennessy v Turner is a warning to those underestimating adult child claims under the Inheritance Act considering some recent case law.

Arguments on ‘principle’ or ‘testamentary freedom’ or ‘fulfilling the testator’s wishes’ do not guarantee successfully defending such claims.

Principles can be expensive. Losses can be expensive and are incredibly difficult to appeal.

As such, they should be mediated early, a sensible offer should be made and considered carefully and claims like this should be taken very seriously.

The full transcript can be found here.

For more information about these issues or to contact Hayley Gaffney, email or call 01726 874751.

Wed 21st Dec 2022

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