Changes to Estates Following Death

Question 1

To whom does the Inheritance (Provision for Family and Dependants) Act (“IPFDA”) 1975 apply?

Answer 1

People who Died Domiciled in England and Wales.

IPFDA 1975 — s. 1(1).

Question 2

What are the Three Types of Domicile?

Answer 2

• Domicile of Origin: This is determined at birth and is based on the father’s domicile if the parents were married or the mother’s if they were not.
• Domicile of Dependency: If the relevant parent changes domicile, so does the domicile of children under 16.
• Domicile of Choice: Sever all ties with their domicile of origin, e.g. by emigrating with the intention of never returning to the UK.

Question 3

What are the Categories of Applicants under the IPFDA 1975?

Answer 3

• Issues.
• Current S/CP.
• Former S/CP that has not Re-Partnered.
• Anyone treated by the Deceased as a Child.
• Anyone financially maintained by the Deceased immediately before Death.
• Cohabitants in the nature of S/CPs, for at least 2 Years before Death.

IPFDA 1975 — s. 1(1)(a)-(e).

Maintenance implies substantial, non-commercial, contributions in money or money’s worth towards the reasonable needs of the person.

Question 4

What is the Time Limit for an IPFDA Application?

Answer 4

Six months from the Grant of Representation.

IPFDA 1975 — s. 4.

Question 5

To what Property does the IPFDA 1975 apply?

Answer 5

The Deceased’s Net Estate, which includes:

• The Succession Estate;
• Any property that the Deceased held a general, unexercised power of appointment in respect of;
• Any property that the Deceased nominated any person to receive;
• Any property that is beneficially held in joint tenancy;
• Any property that:
  • Within six years of death;
  • Is transferred by a disposition with the intention of defeating an application for financial provision;
  • Without providing full valuable consideration to the counterparty; and that
  • The court believes a reversal thereof would provide appropriate financial support to the Applicant.

IPFDA 1975 — s. 25.

Question 6

What are the Grounds for making an Application under IPFDA 1975?

Answer 6

• The Deceased’s Will did not make reasonable financial provision for the Applicant; and (or) that
• The distribution of the Deceased’s Estate under the Intestacy Rules fails to make reasonable financial provision for the Applicant.

IPFDA 1975 — s. 1.

The courts will consider the competing interests of the Applicant and intended Beneficiary, as well as the original wishes of the Testator.

Question 7

If an Application is successful, what may the Court order?

Answer 7

• Periodic payments.
• Lump sum payment.
• Transfer of property.
• Settlement of property.
• Acquisition of property for transfer.
• Variation of marriage settlements.
• Variation of civil partnership settlements.
• Variation of the trusts on which the Deceased’s Estate is held.

IPFDA 1975 — s. 2(1).

Question 8

How do the Courts determine whether the Testator made Reasonable Financial Provision?

Answer 8

By asking:

• Which provisions would have been reasonable for the Testator to make in the given context; and if none can be found
• Which award it should make?

IPFDA 1975 — s. 3.

Question 9

How does the Class of Applicant influence whether the Testator’s Financial Provisions are considered Reasonable?

Answer 9

S/CPs enjoy a higher standard than all other Applicants, namely because it goes beyond maintenance.

IPFDA 1975 — s. 1(2).

Question 10

When may the Court extend the Surviving Spouse Standard?

Answer 10

Type of Applicant:

• The Applicant is a Former S/CP that has not Re-Partnered.
• The Applicant is a Current S/CP that is Judicially Separated.

Time of Separation:

• Nullity, Divorce, Dissolution, or Judicial Separation occurred within 12 Months of Death.

Lack of Financial Provision during Separation Proceedings:

• No Order for financial provision was made during the relevant Separation Proceedings.

IPFDA 1975 — s. 14.

Question 11

In assessing Reasonableness, what must the Court consider?

Answer 11

• The financial needs and resources of all Applicants and Beneficiaries of the Estate, including physical and mental disabilities.
• The Deceased’s obligations and responsibilities toward any Applicants or Beneficiaries.
• The size and nature of the Deceased’s Net Estate.
• Any other relevant matters.

IPFDA 1975 — s. 3(1).

Question 12

In assessing Reasonableness, what must the Court further consider in the case of a Spouse or Civil Partner?

Answer 12

• The Applicant’s age.
• The recognised relationship’s duration.
• Contributions made by the Applicant to the welfare of the Deceased’s family, financial or otherwise;
• Which provisions the Applicant may reasonably have expected to receive in Separation Proceedings if the two were Separated at Death.

The Court considers the formermost two for Former S/CPs and Cohabitees.

The lattermost applies if the Court chooses to apply the Surviving Spouse Standard.

Question 13

In assessing Reasonableness, what must the Court further consider in the case of a Child?

Answer 13

Education or training.

This also applies if the Applicant was merely treated as a child of the Deceased.