4. The planning, management and progression of the administration of an estate including claims under Inheritance (Provision for Family Dependants) Act 1975

Question 1

What claims are made under IPFDA1975?

Answer 1

Claims by people arguing that they have not received ‘reasonable provision’ under the will or the intesacy rules.

Question 2

What are those who claim called?

Answer 2

The Applicant

Question 3

Is IPFDA concerned about fairness?

Answer 3

NO!

Claims are not made on whether the deceased was acting reasonably, or acting fairly.

Question to ask is “was the financial result of the decision(s) made by the deceased reasonable?”

Question 4

What are the six stages the court will go through when deciding whether the applicant has a good claim for financial provision?

Answer 4

1. Standing
2. Timing
3. What the applicant received
4. Relevent standard of financial
   provision
5. Was the financial provision reasonable
6. Powers exercised by the court

Question 5

Step 1: Who has standing to make a claim under s1(1)?

Answer 5

1. The current spouse or CP.
2. A former spouse or CP, provided that person has NOT entered a new partnership.
3. A cohabitee of the deceased.
4. A child of the deceased.
5. Any person who was treated as a child of the family by the deceased
6. Any person who was being maintained wholly or partly by the deceased immediately before the deceaed died.

Question 6

What is a cohabitee?

Answer 6

A person living in the same household as the deceased as a spouse or civil partner for the whole of the period of TWO YEARS ending immediately before the date when the deceased died.

Acting as if they were spouse and civil partner.

Being part of the same household implies more than sharing just the roof.

Question from the courts is are they regarded generally by others as a couple. If the answer is ‘no’ then there is no standing.

Question 7

Who can be treated as a child of the family by the deceased?

Answer 7

This includes step children, but also any other who may not be a step child, but was treating by the deceased as if they were their child.

The question here is treatment of the individual.

Were they treated as a child by the deceased?

Question 8

Can brothers, sisters, parents or grandparents make a claim?

Answer 8

They can only make a claim if they fall into one of the six categories.

For example, as dependants.

If they do not fall into one of the categories then they cannot claim.

Question 9

Who is a child of the deceased?

Answer 9

ALL biological children of the deceased automatically have standing to make an application, whether they are legitimate or not, including those the decease had not acknowledged.

Child does not mean infant. An adult child can make an application.

Question 10

Can an adult child make an application?

Answer 10

Yes they can.

However if they are capable of earning their own living they will find it difficult to claim that a parents estate has not made reasonable financial provision for them.

It is said sometimes they may only suceed if there is a ‘moral obligation’ of some kind. (Re Coventry)

Question 11

What does ‘maintained wholly or partly’ mean?

Answer 11

For dependants this is usually this is usually the most complex category.

Must be maintained imediately before the deceased died.

If they have been paid a proper wage under an employment contract then they have not been maintained by the deceased.

Maintained usually means a number of payments over a period of time, rather than a one off payment.

Question 12

Step 2: What is the timing to make a claim?

Answer 12

The application must be made not later than SIX MONTHS after the ‘date on which representation with respect to the estate of the deceased is first taken out’.

UNLESS the court gives permission for it it to be extended.

An application can also be made before a grant of representation is taken out.

Question 13

Step 3: What must the applicant prove in relation to their receipt?

Answer 13

If the applicant has standing, they must prove what financial provision has been made for them out of the estate under the will, or the intestacy.

Matter of fact, and generally quite straight forward.

Only the value of the ‘net estate’ is considered.

Question 14

What is the joint tenancy exception?

Answer 14

s9 of the Inheritance Act allows the court to include the deceased’s interest under a JT as part of the deceased’s estate.

Question 15

Step 4: What is the relevant financial provision?

Answer 15

There are two standards:

1. The Maintenance Standard
2. The Spousal Standard

Question 16

What is the Maintenance Standard?

Answer 16

This applies to all applicant except spouses and CP.

The court will consider ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive his maintenance’.

It is SPECIFIC.

What was reasonable for THIS applicant to receive from THIS deceased as part or all of THEIR maintenance.

Question 17

What is the Spousal Standard?

Answer 17

The court must have regard to ‘such financial provision as it wuld be reasonble in all the circumstances of the case for a husband or wife to receiver, WHETHER OR NOT that provision is required for his or her maintenance.

Should be the share that the spouse would have received if instead of ending by the death of the spouse, the marriage had ended by divorce or dissolution.

Question 18

What is the key question for the Maintenance Standard?

Answer 18

What does this applicant reasonably require in order to live ‘decently and comfortably according to their situation in life?’ (Re Duranceau)

An applicant with a modest lifestyle cannot claim a reasonable provision that would provide them with a luxury lifestyle.

Question 19

Step 5: Is the financial provision reasonable?

Answer 19

Using the facts in s3 IA - DId the disposition of THIS estate make reasonable financial provision for THIS applicant.

The court must consider ALL the factors in s3. If it is not relevant, it will be considered, and then dismissed. They will all be weighed up, there is not one that is always the most important factor.

Question 20

What are the s3 IA Factors?

Answer 20

a. the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future.

b. the financial resources and financial needs which any other applicant for an order under s2 has or is likely to have in the foreseeable future.

c. the financial resources and financial needs which any beneficiary of the estate of the deceased hs or is likely to have in foreseeable future.

d. any obligations and responsibilites which the deceased had towards any applicant for an order under s2 or towards any beneficiary of the estate of the deceased

e. the size and nature of the net estate of the deceased

f. any physicial or mental disability of any applicant for an order under s2 or any beneficiary of the estate of the deceased.

g. any other matter, including the conduct of the applicant or any other person, which the circumstances of the case the court may consider relevant.

Question 21

How does the court assess “a. the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future.”?

Answer 21

Normally fairly self-explanatory.

The court will look at what property or savings the applicant has, and what the applicant’s income is.

Question 22

How does the court assess

“b. the financial resources and financial needs which any other applicant for an order under s2 has or is likely to have in the foreseeable future.”
AND
“c. the financial resources and financial needs which any beneficiary of the estate of the deceased hs or is likely to have in foreseeable future.”?

Answer 22

Cannot only look at the financial needs and resources of the applicant, it must also look at the needs and resources of any other person who has applied under the act, and also the needs and resources of any beneficiary under the estate.

It may be that they have an arguable case that reasonable financial provision has not been made for thme, but there are also other applicants in need, and their needs may ran higher than the applicants.

Question 23

How does the court assess “d. any obligations and responsibilites which the deceased had towards any applicant for an order under s2 or towards any beneficiary of the estate of the deceased”?

Answer 23

These obligations are likely to carry a very considerable weight when considered by the courts.

Particularly when these obligations are to support an infant child, it will almost always outweigh other moral obligations.

Question 24

How does the court assess “e. the size and nature of the net estate of the deceased”?

Answer 24

Court assesses not only the total value of the net estate, but also how that estate is mafe up.

Does it contain land or other assets which the PR’s will need to sell in order to pay the applicant’s claim?

If selling the assets will leave someone entitled to the assest (eg a child to live in) then it cannot be resolved to materialise the estate.

Question 25

How does the court asssess
“f. any physicial or mental disability of any applicant for an order under s2 or any beneficiary of the estate of the deceased.”?

Answer 25

Where any person, whether the are an applicant or a beneficiary, is suffering from a disability/illness (including a mental illness) this will weight very heaviliy on the scales.

Question 26

How does the court assess “g. any other matter, including the conduct of the applicant or any other person, which the circumstances of the case the court may consider relevant.”?

Answer 26

Conduct does NOT relate to ‘bad behaviour’ of the applicant. It is not to punish those who have behaved badly, or reward those who have been particulary kind to the deceased.

It is more likely to relate to the conduct of the deceased, and any infirmation that they have left (will) about why they have chosen to leave their property in the way that they have.

A pivotal document would be a document that the deceased has left stating who financial support they have provided during their life time.

This information will only assist the court, it cannot be conclusive.

Question 27

Step 6: How do the courts exercise thier power under s2?

Answer 27

If the court decides that the provision has not been reasonable, their powers to remedy the position are in s2.

Most power powers are in 2(1)(a)-(c):
- Order the estate to make periodic payments to applicant
- To make a lump sum payment
- To transfer property