1975 Act Flashcards
1975 Act name
Inheritance (Provision for Family and Dependants)
Who has locus standi under the 1975 Act ? - 2 standards
1(1)(a) - the spouse or civil partner of the deceased
1(1)(b) - a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership
1(1)(c) - a child of the deceased
1(1)(d) - any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family
1(1)(e) - any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
2 standards under the 1975 Act ?
- 2 definitions – see s 1(2)
○ Current spouse/civil partner (surviving spouse standard) : such financial provision as it would be reasonable in all the circumstances of the case for a husband/wife or civil partner to receive, whether or not that provision is required for his or her maintenance - ss (1)(2)(a) and (aa)
For all other applicants (maintenance standard): such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his [or her] maintenance – s (1)(2)(b)
Time limit to make a claim under the 1975 Act
6 months
What can the court order under the 1975 Act ?
○ Periodical payments
○ Lump sum
○ Transfer of property
○ Settlement of property
§ For example: on trust
§ Reverting back to the deceased estate and given to someone else now
Acquisition
Net estate
NOT the same as the residuary estate
* Net estate - what is left after payments of debts, funeral expenses, and liabilities (incl. tax); and -> May include property held or transferred by (outside of a will or intestacy)
Anti-evasion provisions
s.10 and s.11
Leading case for the 1975 Act
Ilott (Respondent) v The Blue Cross and Others (Appellants) [2017]
The test for financial provision
.the consideration of a claim under the 1975 Act is a two-stage process [23]:
§ (1) has there been a failure to make reasonable financial provision; and if so
(2) what order ought to be made?
Ilott (Respondent) v The Blue Cross and Others (Appellants) [2017]
* S.3(1)(a)-(g): General In deciding the answer to the two questions ‘…the court has to have regard to the matters listed in section 3’ - per Baroness Hale in Ilott [2017] at [60]
S.3 1975 Act
The 1975 Act - section 3
* S.3(2)(a)-(b): spouse/civil partner
* Age and duration of the marriage taken into account
* Considering contributions to the welfare of the deceased’s family
* When was judicial separation order enformced ?
* What would the party receive on divorce or dissolution ?
The 1975 Act - section 3
* S.3(2A)(a)-(b): cohabitant (subject to maintenance standard)
○ Age as an important factor
○ Weighing up beneficiaries needs
○ If someone is older is it better to give them a life interest or giving periodical lump sum that could be swallowed up in care later on
* S.3(3)(a)-(c ): child of the deceased and child of the family
○ Whether the deceased maintained the applicant, for how long, to what extent they maintained the responsibility
○ Will they receive financial provisions from elsewhere ? (ur trying to prevent double recovering)
The 1975 Act - s.3
* Pure acts of kindness from time to time are not enough
* It has to be regular etc.
* Facts known to the court at the date of the hearing (from the time the application is made - and NOT since the deceased died)
* S.3(4)(a)-(b): persons maintained wholly/partly by the deceased
S.3(5)-(6)
Saunders v Vuatier (1841)
- Quote: “When a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest, is not bound to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge.” - [per Master of the Rolls at 116]
- It is a rule of trusts law (but also applicable to inheritance)
- Applicable to distributions under will or on intestacy
- All beneficiaries must be 18 years old (sui juris)
- All beneficiaries must have full capacity
- There must be no chance of additional beneficiaries (class closed)
- All beneficiaries must be absolutely entitled
No legal formalities are needed
Proprietary estoppel
Proprietary Estoppel
* A promise (short of a contract)…
* of a proprietary interest…
* in identified property….
* that is relied on by a person…
* to their detriment…
* and is withdrawn….
* and which may entitle the claimant/applicant to make an equitable claim in proprietary estoppel
* Proprietary estoppel = an equitable remedy
* Often brought when the person is still alive
* Such a situation might allow someone to bring a claim under proprietary estoppel
Leading case on proprietary estoppel
Thorner v Major [2009] UKHL 18
