2.3 Probate - Claims Against Estates Flashcards
When must claims be brought against estate (Inheritance (Provision for Family and Dependants) Act 1975)?
Application to court
- Within 6 months after grant issued
=> PR protected from personal liability
Who can qualify as applicant (s. 1(1))?
T’s spouse/civil partner (surviving)
- More favourable standard
T’s ex-spouse/civil partner (NOT re-married)
T’s issues (any age)
- Legitimate
- Illegitimate
- Adopted
Person treated as T’s child (stepchild)
T maintaining person immediately before death
- Providing rent free accommodation
Person living w T for 2 years before death (husband/wife)
What factors may court consider in general?
Financial resources
Applicant’s needs/conduct
T’s moral obligations > Applicant
Applicant’s physical/mental disability
Estate (size + nature)
T’s statement
Applicant’s caring conduct > T
- [Re Callaghan] > Applicant kept in close touch + looked after
T’s lifetime provision
What factors may court consider if the applicant is surviving spouse/civil partner?
Applicant’s age
Duration of marriage
Applicant’s contribution > T’s welfare
Provision reasonably expedcted under divorce
What factors may court consider if the applicant is ex-spouse/civil partner?
Court NOT likely to grant app
If banned by divorce terms (clean break) => Applicants can NOT make app
What factors may court consider if the applicant is young adult in employment?
Court NOT likely to grant app
- Historical reluctance
What factors may court consider if the applicant is treated as child?
Extent of T’s assumed responsibility > Applicant’s maintenance
- [Re Beaumont] - NOT sufficient
Whether T knew Applicant NOT his child?
Other persona legally responsible for Applicant’s maintenance
UNLESS Applicant brought ‘shame and distress’ to T [Williams v John]
What factors may court consider if the applicant is maintained by T?
T’s assumed responsibility > Applicant’s maintenance
- Extent
- Basis
- No. years
What factors may court consider if the applicant is cohabitee (husband/wife)?
Applicant’s age
Length of time
Applicant’s contribution > T’s welfare
What type of orders may court make against estate?
Lump sum payment (most typical)
Periodical payments
Transfer specific property
As court deems appropriate
=> Asset (by will/intestacy)
What anti-avoidance provisions exist?
Prevent T gifting property during lifetime
Court order vs Ben’s gift
- T gave away less than 6 years before T’s death
- Intent to defeat claim
