13.9 Claims against the estate Flashcards
Which statute contains the legal grounds for claims against the estate?
Inheritance (Provision for Family and Dependants) Act 1975
What is the limitation period for making a claim?
An application must be made within 6 months from the issue of the grant of representation to the PRs or later with leave of the court.
3 steps to this claim:
1) Can the person claim? (If they are within 6 months period of grant / court permission granted, eligible claimant)
2) Have they been left in a reasonable financial position?
3) What award should the court make if not?
IMPORTANT: PRs need to wait 6 months from date of grant before distributing estate to beneficiaries - gives a certain amount of time for unknown beneficiaries to come forward. Otherwise, PRs may be personally liable.
How can PRs be protected from personal liability when administering the estate?
PRs must wait 6 months from the date of the grant of representation before distributing the estate to beneficiaries. After the period of 6 months has passed, PRs will be protected from any personal liability arising under any late permitted claim.
Who are the eligible claimants for a claim against the estate?
(S. C. M. C)
[Spouse / civil partner] - Surviving (or former) spouse or civil partner. Married to or in a civil partnership with the deceased at the date of death. This category can also include a former spouse / civil partner, provided that they have not remarried nor formed a civil partnership
[Child] - Child of the deceased or person treated as such (e.g stepchild). Stepchildren are common claimants as they are not entitled under the intestacy rules as surviving issue. Adult children are unlikely to be successful if able-bodied and in employment.
[Maintained person] - Person maintained by the deceased. The deceased should have been making a substantial contribution towards reasonable needs of the claimant
[Cohabitating person] - Person cohabiting with the deceased for 2 years prior to death as if a spouse. Co-habitants are common claimants as they are not entitled under the intestacy rules as a spouse / civil partner.
N.B: The deceased must have been domiciled in England and Wales at the time of their death
Explain the legal ground of establishing ‘reasonable financial provision’
This ground must be established. Process for determining what constitutes reasonable financial provision has two parts -
Part 1: Has the will/intestacy rules failed to make reasonable financial provision for the applicant?
Part 2: If so, what would be such provision?
Objective test
What is the ‘surviving spouse’ standard for reasonable financial provision?
Such financial provision as would be reasonable in all the circumstances, whether or not required for maintenance. (Court should consider what would be awarded in a divorce)
→ EXCEPTION: Discretion for court to apply this standard to former spouses if death occurs within 12 months and no final order was made in divorce proceedings
No maintenance restriction for spouses / CP.
What is the ‘other applicants’ standard for reasonable financial provision?
Such provision required for their maintenance such that they can live decently and comfortably according to their situation
What counts as admissible relevant evidence in this claim?
The deceased’s reasons for not providing in their will for an applicant
What guidelines will the court refer to when determining reasonable financial provision?
(F. MO.NE. D Conduct) guidelines = Financial. Moral Obligation. Net estate. Disability. Conduct
[F] The financial resources and needs of the applicant, any other applicant and any beneficiary (now or in the future)
[MO] Any moral obligation of the deceased to any applicant or beneficiary
[NE] The size and nature of the net estate of the deceased
[D] The physical or mental disability of any applicant or beneficiary
[Conduct] Any other relevant matter, including the conduct of any person
What are the special factor guidelines for a surviving spouse?
[Marriage] The age and duration of the marriage
[Contribution] Their contribution to the welfare of the deceased’s family
[Divorce Provision] The provision which might have reasonably been expected on divorce at the date of death (only a starting point)
NOTE former spouse: Above apply except the divorce provision (unless by discretion of the court)
What are the special factor guidelines for a cohabitant?
Relevant factors include:
[Age]
[Duration of relationship] How long they lived like spouses
[Contribution] their contribution to the welfare of the deceased’s family
What are the special factor guidelines for a child?
Relevant factors include:
[Education]
[Maintenance] Whether the deceased maintained the applicant - how long and to what extent,
[Knowledge] Whether the deceased knew applicant was not their own child
Children are subject to the maintenance restriction
How is the estate distributed following approval from the court?
Estate devolves according to the terms of the courts order and not in accordance with the will or the rules on intestacy
What are the court’s powers in relation to a claim against the estate?
The court has wide discretion to order the following:
- Awarding a specific lump sum to be paid to the claimant;
- Periodic payments to be made (for maintenance);
- If the claimant is arguing for specific property, that property be transferred or sold and the proceeds be split between beneficiaries;
- Declare property to be held on trust
