Financial settlements and end-of-life illness

Very sadly, I have had a recent spate of cases involving terminal and critical illness, which will undoubtedly limit and shorten the life of the sufferer. I thought I would share some of the difficult and novel factors when dealing with these matters, and some outcomes.

In my most recent matter I acted for the husband, who was 45 years of age. The wife was 42, and they were married for around 13 years and had one child. For the purpose of the proceedings this was accepted as a marriage of significant length. The sad and particular factor in this case was the medical circumstance of the husband, who was an extremely high earner, successful and driven in his workplace. In April 2024 he was diagnosed with motor neurone disease (MND). There is no dispute that this disease is progressive, debilitating, and causes loss of motor functions that leads ultimately to respiratory and nutritional failure.

In August 2025 he was experiencing weakness in his right arm, leaving him unable to raise his arm effectively; in September 2025 there was a steady progression of weakness with deterioration in his core stability and his ability to mobilise. At this time, the treating clinician stated that her impression was that his condition was largely stable. He was incapacitated in hospital suffering a chest infection; at the time of the hearing he was bed-bound, with no independence and a decline in mobility and functionality of his arms. Despite that, his physician still described him as largely stable and “doing well”. His treating physician said it was difficult to provide a specific prognosis given the significant heterogeneity in variability of the rate of progression. Notably in this case, his wife did not submit at the outset that this was an end-of-life case, and seek a part 25 application for expert opinion on that point. Therefore, the only medical evidence the court had before it was that of his treating physician.

On the point of end-of-life medical evidence, my experience is that there are very few physicians who are prepared to pin their colours to the mast unless death is absolutely imminent and obvious within a period of six months. I therefore did not think the wife’s position was necessarily unusual or unreasonable.

However, at the court hearing, the wife based her case on the MND clinical nurse specialist that MND sufferers on average have a survival of between two and five years, with an average of about three years from the onset of symptoms. Given the husband had experienced these symptoms in some form for about three years, she argued that he must be close to death. Without further evidence the court said it was not able to accept that assumption.

Based on this belief, the wife’s position was that she needed to have in effect a reversionary interest: assets would be made available to the husband for his needs but would revert to her on his death. The husband was intending to make provision for the child, but even in these circumstances, the position of the wife was not acceptable to the husband, who wished to have his own assets and treat them freely. This difference would have been significantly worse had there not been any children of the family.

The case law that the court relied upon to assist it in this matter included SC v TC [2022] EWFC 67, where the husband had received a diagnosis of Parkinson’s Disease. Against advice he entered into a separation agreement with his wife, in relation to which an application for Notice to Show cause had been made. The agreement was found to be unfair, and the husband was awarded half of the assets on the basis that in terms of life expectancy the worst case was five to seven years but the best case could have been 10 to 15 years. Significantly, the judge said that just because the husband had a serious medical condition with worsening disabilities, he still had a housing need, and his social needs should not be disregarded. The judge went on to say that his lack of litigation capacity did not mean that he did not reasonably need the things that other people without disabilities reasonably needed, in particular a reasonably furnished house.

The judge in my present case relied on this to say that the court identified the need not to discriminate against the husband in light of his disability and ill-health. This theme resonated throughout his judgment, where he made various references to not discriminating against somebody because they have disabilities or they are suffering ill-health. With regard to the difficulties in considering life expectancy, the judge commented on the case of M v M [2015] EWFC B63, where even where it is very likely somebody has a reduced life expectancy it is then pure guesswork how reduced it may be. Again, the reference to discrimination against somebody on their basis of ill-health was referred to in that case. The judge went on to say that findings about life expectancy based on median figures would be even more unsatisfactory and unjust.

In this case the property assets were split to give a 50/50 share, and the husband was to keep his investments, shareholdings and savings, with an overall departure from equality in his favour. The departure from equality was to factor in his additional needs due to his life-shortening illness. He required adaptations to any new property bought to meet his housing needs, which would factor in his changing physical needs and mobility restrictions, as per the expert evidence from the occupational therapist. Crucially, this was also a clean break case, given the husband’s unpredictable earning capacity.

The approach of the court was to ensure that needs were dealt with and after needs there would be fairness. Luckily in this case, there were sufficient assets to meet both parties’ basic needs. The judge refused to depart from fairness, and in particular refused to take what he saw as a discriminatory approach against somebody because they were ill. On a practical basis, the judge did note that wills were being made, and that my client would be leaving his assets to his son. A will was drawn up promptly, even though it was not disputed that wills can be changed.

The judge relied on White v White as the yardstick of equality and said that nobody should suffer on the grounds of their disability; in his view there would be discrimination if my client were penalised with reversion. The judge said that he would not discriminate against one who has a life-limiting disease. On a practical basis, the life insurance policy was left in trust for the son and not the wife. The judge was not prepared to direct or make the husband determine who the beneficiary would be and said it was his choice.

So, how do we deal with cases where there is a chronic serious illness and significant life shortening?

1. Consider at an earlier stage whether there should be a section 25 application from a treating physician to give evidence on proximity of death. In my experience, it is only when somebody is very obviously at end of life that a physician will give a time scale. In cases such as these there can be accelerated receipts of pension and insurance benefits, so it is worthwhile looking and considering.
2. If you are acting for the survivor of partners in circumstances such as these, consider practical measures such as, if there is to be a pension share, substituting the “survivor” as a beneficiary under any pension share even if it is only for a fixed period of time.
3. In the case of liquid cash and assets, the indication appears to be that just because somebody has a shortened life span, it does not mean that they should not have a full share of what they are entitled to with freedom to dispose of it as they wish. In this case the client made a will, but a will can be revoked. The other option is to consider the creative uses of trusts.
4. Where there are children, it might be easier because one would hope that the parties would still have a common and joint focus on the child. Where there are no children however, the case law appears to be quite clear: just because somebody may be dying, it does not mean that they should not receive the full extent of their assets that they are entitled to, after ensuring needs, and that “fairness” must still prevail. This means that even if they are likely to die they should be able to deal with and dispose of their interests in the manner they see fit. They should not be discriminated against or treated differently; premature death and suffering should not rob them of this.

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