Deputy Master Brightwell has recently handed down judgment in Colin Johnston v Natalie Elsie Wackett (in her capacity as Executrix of the estate of Lord Sidney Albert Johnston)  EWHC 129 (Ch). The case involved a Part 8 claim for the administration of the deceased’s estate following a previous award made pursuant to s.2, The Inheritance (Provision for Family and Dependants) Act 1975 for the payment of a lump sum out of the estate in order to make reasonable financial provision for an adult son of the deceased’s and, specifically, whether the Executrix was permitted to exercise a right of net off against the award, pursuant to the equitable rule in Cherry v Boultbee (1839) 4 My & C 442.
In upholding the claim, the Court held that the right of net off under the rule in Cherry v Boultbee has no application to an award made under the 1975 Act, in the absence of dishonest concealment by the receiving party of their existing liability to the estate.
The judgment also includes findings as to when the paying party’s obligation to pay an award of costs following detailed assessment takes effect—i.e. from the pronouncement of each finding made during the assessment or from the issuing of a final costs certificate.
Romie Tager QC and Maxwell Myers acted for the Defendant.
The full judgment can be found here.