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Post-death claims in the Roy household - children, cohabitees and candid wives

Charles Russell Speechlys Succession Watch: Episode 9

“See Shivvy cry, see Kenny die, see Roman the showman light up the sky.” – Roman

The fight for Logan Roy’s respect, and by extension, his business empire, has always been at the heart of Succession. In this penultimate episode, the siblings’ struggle was on public display; while Roman’s speech aligned him with his father (“Don’t I perhaps remind you of him, just a little?”), he was unable to deliver, leaving Kendall and Shiv to swoop in and seize the opportunity. Greg angled, even post-death, for a place by the CEO’s side as a pall bearer. And the sight of Logan’s widow Marcia, mistress Kerry, and ex-wife Caroline sitting together in the front pew was a reminder of how many players there still are in the fight for Logan’s legacy.

This week we consider the post-death claims the key Succession characters might have against Logan’s estate, including claims for reasonable provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) and claims of proprietary estoppel based on promises made. We’ve also been thinking about who we might want to act for – surely every private wealth disputes lawyer has daydreamed about this at some point? The Roy family certainly look like high-maintenance clients, but someone has to act for them in the inevitable fall-out! Here (and ignore the horrendous conflict points!) the CRS Succession Watch-team have picked a family member each and thought about the possible claims they might have.

The Claims

Under a 1975 Act claim, the Court will assess whether the will failed to make reasonable financial provision for the claimant in all the circumstances of the case, according to the standard applicable to that claimant. The standard for reasonable financial provision is higher for spouses than other categories of claimants; spouses will be assessed on what is ‘reasonable’ for them to receive, whereas other claimants will be assessed on what is reasonable for their maintenance only.

A proprietary estoppel claim, on the other hand, will succeed where the claimant has been made a representation, promise, assurance or other encouragement giving rise to an expectation that they would have a certain proprietary interest; the claimant relies on that expectation; and the claimant suffers detriment because of that reliance.

Marcia

“No need to be ashamed; we’re family. I’ll be looking for between $60 to $70 million.” – Marcia

Marcia seems to be going into any estate dispute one step ahead of the rest of the family. Episode 4 sees Connor haggling with her over the price-tag for the New York penthouse, which suggests that Marcia is already entitled to that home. This could be because she has inherited it under Logan’s will or, if Logan and Marcia were co-owners, it may have passed to her by survivorship.

Marcia would also have an advantage were there to be a flurry of 1975 Act claims by other members of the family (presuming they could establish that Logan was domiciled in England and Wales). As surviving spouse, the Court will look at her claim based on the more generous approach of reasonable provision whether or not this is required for maintenance. When considering provision, the Court will apply the divorce cross-check and consider what provision Marcia might have received had there been a divorce (while acknowledging that her situation is different in that there is now only one spouse left to provide for from the marital pot). Marcia would expect to receive some provision for her housing (which is likely to be rather nice) and a sum to produce an annual income based on her spending and needs. This would look at Marcia’s spending in the years leading up to Logan’s death, so if she has been doing some lavish shopping in Milan, this might in fact help increase the value of her claim. The Court would also consider the length of Marcia and Logan’s marriage and the competing claims of other beneficiaries (although here, you would hope, there should be enough for everybody to receive some benefit). Marcia would have the option of issuing in the Family Division or the Business and Property Courts; spouses often find Family judges preferable as they are more familiar with spouse claims and the divorce cross-check.

There are some further points in Marcia’s favour. As spouse any monies passing to her would not be subject to UK inheritance tax, due to the spouse exemption. This may mean that gifts to Marcia form useful tax planning for Logan or as part of any settlement. If Marcia can show she has not been reasonably provided for, then she would also generally be entitled to her costs of the application which can apply further pressure.

Lady Caroline

Sally-Ann was my Kerry, so to speak – it’s all water under the bridge now isn’t it.” – Caroline

Lady Caroline is Logan’s second wife and the mother of Kendall, Roman and Shiv (though by her own admission, she “should have had dogs”). Having been disinherited by her own family in favour of the male line, Lady Caroline is presumably seasoned in family succession disputes, and we wonder how this past experience, which remains “the thorn in her side, the fishbone in her throat”, might influence Lady Caroline’s decision whether (or not) to bring post-death claims against Logan’s estate.

As an ex-spouse of the deceased, a claim by Lady Caroline under the 1975 Act may be limited by the terms of the financial settlement that she entered into with Logan at the time of their divorce. It is not uncommon (and would indeed be advisable) for such settlements to include a clause that prohibits an ex-spouse bringing a 1975 Act claim against the other parties’ estate on death. These sorts of clauses will be upheld by the Court if the financial settlement has been formalized in a Court order, and in circumstances where the applicant is seeking to rely on their status as a “former spouse” to bring the claim (s.15 1975 Act, see also Chekov v Fryer [2015] EWHC 1642 (Ch)).

We expect that Lady Caroline will also face difficulties in proving eligibility to bring a 1975 Act claim following her remarriage to Peter Munion last summer in Italy. This is because only former spouses who have not formed a subsequent marriage are eligible to bring an application (s.1(1)(b) 1975 Act). Whilst Lady Caroline could seek to persuade the Court that she was being maintained by Logan immediately before his death and establish eligibility on that ground (s.1(1)(e) 1975 Act), she would need to provide clear evidence to support that proposition. This would be the case even though Lady Caroline’s new husband, Peter (“of the Pimlico flat lost to a disastrous salmon smoking venture”), appears impecunious.

Kerry

Are you trying to have a baby with my Dad? Because that's an incredibly stupid idea… It'll be born old, attached to a walker.” – Roman

Kerry first appeared on our screens in season 2, as Logan’s assistant. Her storyline developed in season 3 as she and Logan evidently became closer, culminating in speculation by Shiv and Roman in season 3 that Kerry might be pregnant with Logan’s child – “It’s like he’s having a midlife crisis, aged 80”. The speculation escalates in the season 3 finale when Connor reveals that Willa has been talking to Kerry and Logan has been putting Maca root in his smoothies (apparently known for improving fertility).

It seems unlikely that Kerry could make a claim under the 1975 Act as a co-habitee of Logan, because she would need to show that she had been living with Logan for at least two years before his death (which does not accord with the timing of her appearance in the show).

Kerry may be eligible to bring a claim under the 1975 Act however as someone who, immediately before Logan’s death, was being maintained (either wholly or partly) by Logan under s.1(1)(e) of the 1975 Act. However, she would need to provide evidence of that maintenance. If we were defending a 1975 Act claim brought by Kerry, we would certainly suggest that any benefit received by Kerry was received pursuant to her employment contract rather than as Logan’s dependant (making her ineligible to bring a 1975 Act claim). Logan himself says of Kerry: “I'm keeping out. She's my assistant. It would be very unprofessional of me to get involved.”

Any award made to Kerry as a dependant would be limited to her reasonable maintenance, which would be assessed in accordance with the factors in s.3 of the 1975 Act. The Court would consider the size and nature of Logan’s estate, Kerry’s needs, the needs of other beneficiaries of Logan’s estate and whether Logan had any obligations towards Kerry. If Kerry could show that she was receiving regular maintenance, for example a monthly allowance or payment of insurance, then she would have a reasonably strong claim as a dependant for those sums (and those sums only). The potential claims may be stronger if Kerry were to be pregnant, and her unborn child may have a separate claim.

Connor

“I'm the eldest son. And I must be considered, and I need to be taken into account.” – Connor

Connor, the eldest son of Logan Roy, could be entitled to make a claim under the 1975 Act as he is a child of the deceased under s.1(1)(c). Whether or not he would be successful in obtaining an award is another question. A minor child; i.e. a child under the age of 18, would have a stronger claim than an adult child because they are financially dependent. This does not mean, however, that a claim made by an adult child should be disregarded and it is therefore important to weigh and balance all the relevant factors under s.3 of the Act.

The recent case of Larsen and another v Annan [2023] EWHC 662 (Ch) provides an example of an adult child claiming under the act on the basis of needs, as opposed to dependency on the deceased for reasonable financial provision. In that case, claims were made by two adult children against their sister in relation to their late father’s estate. One of the sons was successful and the Court awarded him a (modest) sum to provide reasonable financial provision, to be held on trust, to cover his potential future care needs.

For Connor, the first question he would need to consider would be: has the deceased's estate made reasonable financial provision for him by the standard applicable for an adult child? We are not yet sure what provision has been made for Connor (or any of the children for that matter), if any, from Logan Roy’s estate, however what we can be sure of is that Connor is wealthy in his own right and “happen[s] to be a billionaire”, so we know he’s not strapped for cash. Connor is also an adult child and is believed to be in his mid-fifies. From our knowledge, he has been living independently from the deceased for all, if not the majority, of his adult life, enjoying a rather libertine lifestyle at his New Mexico ranch with Willa. However, everything we have seen so far, including the vanity project of applying for President, does not fill us with confidence about Connor’s ability to earn his own living or be financially independent. Although Connor could make a claim against his father’s estate (on the basis no provision has been made for him or if it has, he does not consider it to be reasonable), he will need to consider the likelihood of success (which is not looking particularly positive at this point) and the potential cost consequences should his claim fail. The only thing going for him is that if he can show he is less likely to be successful than his more ruthless siblings, then he may be able to put forward a stronger claim for provision.

Greg

What’s it worth? In terms of the me of it all?” – Greg

Greg is obviously not Logan’s spouse or an adult child. His only possible way to make a claim would under section 1(1)(e) of the 1975 Act, as someone maintained by the deceased. This would need to be a substantial contribution in money or money’s worth towards Greg’s reasonable needs (for example if Logan had been giving him an allowance, or paid for his accommodation), immediately before Logan’s death. It couldn’t be a contribution made for full valuable consideration in a commercial arrangement – so Logan giving Greg a job at Waystar Royco would not qualify. Greg would also need to prove that Logan assumed responsibility for his maintenance – which knowing Logan’s ungenerous nature, does not seem likely.

Overall, Greg does not have the strongest claim – but don’t completely rule him out. The “leggy princeling of ATN” keeps failing upwards and has a habit of keeping and collecting evidence. He might still surprise us all.

Kendall and Shiv

"You're given the keys to the castle and then you get paralyzed staring into the eyes of the cobra." – Shiv

While Kendall, Roman and Shiv would also have 1975 Act claims as children of the deceased under s.1(1)(c), Kendall and Shiv in particular might choose to pursue a different claim under proprietary estoppel.

Did any of the lofty promises made by Logan to name one of his children as his successor constitute a real intention to make a gift of property (of, for example, his controlling shareholding in Waystar Royco)? Presuming this was the case, and presuming they relied on that promise, then both Kendall and Shiv may have claims against Logan's estate where they had been led to believe that the top position (and the shares that come with it) belonged to them, and that promise was subsequently broken. A promise made over an interest in shares has been seen before in Harris v Kent and Anor [2007] EWHC 463 (Ch) and is not too far removed from the situation in Succession. By reviewing each of the elements in turn, we can begin to see the basis of a potential claim.

Assurance

Firstly, there must have been a representation or assurance made to either of them by words or conduct. For Shiv, Logan very clearly makes her the coveted offer in the opening episode of season 2: "What I've decided I'd like to do is to formally ask you to come in and be the next chief executive of this company." Any doubts Shiv then expressed were met with assurances from Logan ("You're the one" and "This is real"). Unfortunately for Shiv, her prospects disintegrated over the course of that season, and she was cast aside (cue flashbacks to the awkward confrontation at the Roy-Pierce dinner in season 2 episode 5, where Logan refused to name Shiv as his successor). Nevertheless, it can confidently be said that an assurance was made.

Kendall’s position differs in that he is never explicitly promised the position or named as successor by Logan, but he may have been made an assurance by conduct. Being the eldest son, it is strongly inferred ever since the pilot episode (and throughout most of the show) that Kendall and the rest of his family believe that he may one day run the company. Some of Logan’s manipulating conduct supports this, right up until the season 2 finale when Kendall asks Logan whether he ever thought he could be CEO, to which Logan replies: “You’re not a killer. You have to be a killer.” Kendall’s big break, however, is his name appearing in Logan’s letter of wishes in episode 4 of this final season, providing (semi-conclusive) proof that Logan wanted Kendall as his successor - so perhaps the assurances he believed were made to him by conduct were well-founded. In such cases, the personalities of those involved will be a consideration for the Courts, as seen in James v James 2018 EWHC 43 (Ch) 01 where the actions or statements of someone known to be reluctant to make solid commitments did not amount to an assurance.

Reliance

Secondly, either Shiv or Kendall must have relied on the assurance made to each of them. Both worked at the company primarily for the purpose of achieving the top position and controlling shareholding; Kendall for his entire career (except for his rogue phase in season 3), and Shiv for seasons 2 and 3. Both have arguably made life-changing decisions with irreversible consequences and perhaps both may have gone different paths if they had known for certain that running the company was never their destiny.

Detriment

Thirdly, they must have suffered a detriment as a result of their reliance. Every viewer of Succession may have their own opinion on this one, depending on who you support (for some that might be none of them!). All three of the children however have often created their own detriments in the pursuit of taking their father down, which would certainly undermine their case. As in the case of James v James above, there will also be no suffering of any detriment where one receives good renumeration for their work, as is likely the case with Shiv and Kendall in their roles at Waystar Royco. However, we know that Kendall had devoted his career to working at Waystar, including being forced to work abroad for extended periods of time. Perhaps his reliance on representations made throughout his life that he would run the company (as evidenced in Logan’s letter of wishes) means that his detriment has therefore been the greatest. Perhaps just putting up with Logan’s capriciousness and meanness is detriment in itself?

Unconscionability

A final factor that is also key to consider is that it must be unconscionable to deny the promise or appropriate compensation. Kendall’s documentary evidence might help his case here, but this factor follows from whether either of them truly suffered any detriment. Since this permeates through each of the three elements, we may leave this to each viewer’s interpretation. The moral conundrum of how much more wealth and power one needs is at the very heart of the show.

Both children have strengths and weaknesses in their claims and ultimately every case will be judged on its individual facts. One thing that was made clear in the Supreme Court’s decision in the proprietary estoppel benchmark case of Guest v Guest [2022] UKSC 27 is that there will be some degree of flexibility when granting equitable relief, either to enforce the promise or provide a remedy in some other way. An appropriate remedy will centre around fulfilling the reasonable expectation of Shiv or Kendall, unless that remedy would be “out of all proportion to the detriment” suffered. A claim in proprietary estoppel will aim to hold the promisor accountable to their promise - but whether it is too late to prevent or undo any unconscionable conduct of Logan remains to be seen until the final episode.

Conclusion

We have seen throughout Succession how many of the characters have been motivated by the struggle for power. This has not only provided compelling entertainment but has been an (extreme) example of how inter-family dynamics can impact the passing of wealth down to the next generation. The fact that many of the characters we have reviewed may seem cheated at times, only highlights the importance of thorough succession planning for high-net worth individuals with diverse assets and complex estates. One thing that is clear - should things go wrong, there are various legal options that can be explored to provide claimants with an equitable outcome (and lots of interesting opportunities for their lawyers).

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