Chapter 9: Claims under the Inheritance (provision for family and dependants) Act 1975 Flashcards
what claim can be made under the Inheritance (provision for family and dependants) Act 1975?
Applicants argue they have not received a ‘relevant provision’ from the estate.
What is the overriding question of the court under an inheritance act claim?
whether the RESULT of the financial provision made (or no provision at all) is a reasonable provision. - in the claimants specific circumstances.
What are the 6 steps to bring a claim under the inheritance act?
- Standing
- Timing
- What the applicant received from the estate
- The relevant standard of financial provision
- Is the provision reasonable? balancing exercise
- Exercising court powers (reorganising the estate)
who has standing to bring a claim?
Current spouse/ civil partner.
Former spouse/ civil partner
Cohabitee
Child
Any person treated like a child of the family e.g stepchildren
Any person being ‘maintained’ by the deceased immediately before death - dependant category
what is the condition for a former spouse / civil partner to bring a claim?
not entered a new marriage/ civil partnership
what is the condition for a cohabitee to bring a claim?
MUST be living together the same as if spouses for 2 years
what will the court consider if a cohabitee brings a claim?
how they are regarded generally by people who knew them - e.g are they regarded a couple?
is it a single household not just under same roof
when could an adult child succeed in a claim?
there is a moral obligation
what will the court consider for any person treated like a child?
look at HOW they are treated
when will a dependant not usually have standing?
receive a proper wage under a contract of employment
deceased must not have given full valuable consideration
WHEN must an application be made?
no later 6 MONTHS from the date representation was granted unless court order gives permission
what value of the estate is considered?
only the net value of the estate - pension payments/ insurance policies are excluded.
what is the exception under s9 of the inheritance act?
allows the court to include deceased interest under a joint tenancy as part of the estate
what is the relevant standard of financial provision for applicants (NOT SPOUSES/ CIVIL PARTNERS)
Maintenance standard - what was reasonable for THIS applicant to receive from THIS deceased as part/ all of their maintenance
What will the court consider to determine maintenance standard?
What does this person reasonably require to live decently/ comfortably based on their station in life
What is the standard for married/ civil partnership applicants?
what was reasonable in ALL circumstances of the case for a spouse to receive - maintenance is irrelevant.
what will the court ask to determine the spousal standard
what would the posse have received if the marriage ended in DIVORCE not death
what is considered the courts balancing exercise?
financial resources/ needs an applicant has or is likely to have in the foreseeable future
financial resources/ needs which any other applicant has or is likely to have in the foreseeable future
financial resources/ needs which any beneficiary of the estate has or is likely to have in the foreseeable future.
Any obligations/ responsibilities the deceased had towards any applicant / beneficiary.
Size and nature of the estate
Any physical/ mental disability of any applicant / beneficiary
Others matters - inc conduct of applicant / any other person which the court might consider relevant.
what will the court look at when considering conduct?
conduct of the deceased
legal document / letter setting out financial support of their lifetime
what can the deceased not avoid?
inheritance act provisions
what does the court have the power to do under S2?
Court has power to make any supplemental orders to give effect to the claim = reorganise the distribution of the estate
what will usually outweigh any moral obligation?
Infant child maintenance
what does the size and nature of the estate determine?
How a claim might be paid - does a property need to be sold?
if the claim is realistic (e.g sufficient funds/ assets?)
