The Daily Mail in article on 26^th October 2021 reports an inheritance dispute in the High Court involving the widow of  Fiaz Shah, a property developer, who died in April 2020 at the age of 64, leaving an estate valued at £1.1 million.

Mr Shah’s last will from 2018 bequeathed all his wealth to his son, Sajad Ali Shah, leaving his 57 year old widow Srendarjit Kaur Jassal, nothing. Mrs Jassal was a stepmother to Sajad and his three sisters Sabrina, Sofia and Shabana.

She is now bringing a claim against her late husband’s estate under the Inheritance (Provision for Family and Dependents) Act 1975 for ‘reasonable financial provision’. The Act provides a potential lifeline to certain classes of individuals and relatives of a deceased person, to make a claim for financial provision from that person’s estate, where their will (or their failure to make a will) results in no  – or inadequate – financial provision for them. A crucial component of these claims is that the claimant is in financial need.

The widow’s claim is being opposed not just by the deceased’s son but also by his 3 daughters, none of who were named as beneficiaries in his will. The daughters, interestingly, all say that their father had set up a ‘secret trust’ to cover their needs. The siblings’ barrister said the secret trust had been discussed between Mr Shah and his children and was in line with Islamic practice that his son would inherit his father’s fortune but then distribute it fairly among his family.

Why would the sisters raise this argument?

Very unusually, the sibling group is trying to argue that the Court should not just consider Sajad’s financial needs as part of its decision making process, but should also take into account that any award to their stepmother would also have an adverse impact on them financially.

So, if the judge needs to consider whether or not a secret trust exists, what is it? A trust can be described as a relationship created at the direction of an individual, in which one or more persons hold the individual’s property subject to certain duties to use and protect it for the benefit of others. The person who holds the property for another’s benefit is called a ‘trustee’ and the person who benefits from the trust is the ‘beneficiary’.

In a fully secret trust, the will does not reveal that a trust exists at all. It is simply that there has been an earlier agreement between the maker of the will and the trustee during their lifetime. So, here, the argument is that Mr Shah and his son reached an agreement that Sajad would share the estate between himself and his sisters.

Secret trust cases are unusual. In Victorian times, men who had a mistress and illegitimate children wanted to be able to provide for them without their legitimate family finding out about them after their death. A secret trust provided an opportunity for them to retain a veneer of respectability after death while providing for those they felt a moral responsibility towards.

Generally speaking, it’s not a course of action that would be recommended because the will maker is relying heavily on his or her trustee to do what they are asked to do after their death.

In this case it is reported that the couple were together for nearly 20 years and married under Islamic law. But giving evidence, Shabana told the judge: ‘They were together until 2012, but after that they broke up’. In response, Mrs Jassal’s barrister highlighted a significant number of affectionate and domestic texts between her and Mr Shah, saying they proved the length and stability of their relationship across the five years leading up to Mr Shah’s death.

Mrs Jassal’s claim is brought on the basis that she has ‘virtually no financial resources’ and cannot work due to medical complaints.

Judgement has been reserved, so we won’t know for a while whether or not Mrs Jassal’s claim will succeed. Given the size of the estate, and the length of the marriage, even if a judge was persuaded that there was a secret trust, it seems unlikely to prevent a significant sum being awarded to the widow, if the judge accepts that she is in need. This seems to me to be another case that ought to have been settled out of court, but probably was not because of the obvious hostility between the family members.

Sarah Young – Director & Solicitor