Challenging estate distribution

Question 1

2 bases for a challenge of estate distribution?

Answer 1

1-Validity of will - undue influence/duress or capacity arguments usually. must rebut presumption.
2- will or intestacy doesnt make appropriate provision for the applicant - Inheritance (Provision for Family & Dependents) Act 1975

Question 2

Potential applicants under 1975 act

Answer 2

Spouse/CP
Former spouse/CP - not remarried
Child of deceased
Any person treated as child of deceased
Dependants? - ppl maintained by deceased immediately before death (eg elderly rents)
Cohabitants - ppl who lived in same household as their spouse/CP during 2 years ending immediately b4 death

Question 3

What is the time limit for a claim

Answer 3

6 months from date of grant of representation (formal doc issued following death, sometimes months later)
-can be extended if a good reason for delay

Question 4

Key aspects to remember

for challenging estate distribution

Answer 4

basis of challenge
potential applicants
time limit 
ground for claim
1975 act s3 guidelines
1975 act possible orders

Question 5

what is the only ground for a claim under the 1975 act

Answer 5

“The disposition of the deceased’s estate….is not such as to make reasonable financial provision for the applicant”

Question 6

what are the 2 standards for judging whether reasonable provisions were made for the applicant?

Answer 6

Surviving spouse standard

Ordinary standard

Question 7

What is the surviving spouse standard?

Answer 7

Such financial provision as is reasonable in all the circumstances, whether or not that provision is required for maintenance. (key question - what would spouse have received on divorce - generous)

Question 8

What is the ‘ordinary standard’ for judging where reasonable financial provision has been made?

Answer 8

“Such financial provision as it would be reasonable in all the circumstances…..for the applicant to receive for his maintenance.” eg adult child of deceased gets nothing, as can get a job, unless needs for maintenance eg disabled, cant work, young children etc.

Question 9

What are the guidelines for the court as in s3 1975 act?

Answer 9

Financial resources and needs of applicant
moral obligation of deceased to applicant
size and nature of estate (bigger = easier to justify)
disabilities of applicant
any other relevant matter incl conduct of any person
for surviving spouse factors include age, duration of marriage and contribution to welfare of deceased’s family
for child, whether deceased previously maintained them

Question 10

What are the possible orders under 1975 act?

Answer 10

lump sum payment
periodical payment
transfer of property
settlement of property on trust
note - orders can be jointly owned property not just assets under will/i