Court penalises delay

Posted: 29th October 2013

RCJA widow who hesitated for more than six years before taking legal action, despite her conviction that her wealthy husband had not made reasonable financial provision for her in his will, has paid a heavy price after the Court of Appeal ruled that her claim had rightly been dismissed on grounds of delay.

Successful solicitor and property investor, Clive Zola Berger, who left a £7.5 million fortune, had written a letter shortly before he died urging his sons to maximise their step-mother's income for her lifetime and to avoid family squabbling over his estate. He signed off with the words ‘I shall be watching!’

But the prospect of post-mortem surveillance was not enough to prevent a bitter legal tussle in which his widow, Rosana Berger, accused her stepsons, as executors of the estate, of starving her of the income she needed to live in reasonable comfort. The 84-year-old argued that she needed more than £220,000-a-year to keep herself in the style that her husband had clearly intended.

Lawyers representing Mrs Berger submitted that her net income of £72,000-a-year was nowhere near enough to maintain her home - an eight-bedroom mansion valued at £4.5 million over which she holds a life tenancy – to pay her domestic staff and to cover her other reasonable out-goings.

She launched proceedings under the Inheritance (Provision for Family and Dependents) Act 1975 seeking reasonable provision from her husband’s estate. Her claim was dismissed at the County Court on the basis that it had been brought far outside the strict six-month time limit laid down by the statute.

Ruling on her appeal against that decision, the Court found that the trial judge had erred in his assessment of the merits of Mrs Berger’s claim and that she had an 'arguable' case that, despite her husband's dying wish that she receive a generous income, the terms of his will did not provide for her adequately.

Dismissing her appeal, the Court noted that Mrs Berger would not have needed anyone's permission to launch her claim if she had done so within six months of her husband's death. Although she had been understandably reluctant to air the family dispute in court, the delay of more than six-and-a-half years meant that it was inappropriate for her claim to proceed.

Urging an end to the legal wrangling, the Court noted that Mr Berger’s sons had 'shown an appreciation of their obligations' as trustees of his estate and expressed the hope that, in a spirit of compromise, a way could be found to make ‘suitable provision’ for their step-mother’s income needs.

Mr and Mrs Berger were together for 36 years until his death and she had helped to bring up her step-sons from boyhood. His estate included half of a £1.2 million ranch in Arizona, three London flats and shares in his property company worth almost £3 million. Less than three months before he died, he had written a letter urging his sons to use their best endeavours to maximise their step-mother’s income and to ‘make absolutely sure that the estate is not involved in the arguments and problems that can so often arise in probate’.