CLAIMS AGAINSTESTATES UNDER INHERITANCE (PROVISION FOR FAMILYAND DEPENDANTS) ACT1975

Question 1

CLAIMS AGAINST ESTATES UNDER INHERITANCE
(PROVISION FOR FAMILYAND DEPENDANTS) ACT1975

Answer 1

1. under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’), as amended, an application for family provision may be made to the court to **set aside the terms of a will (or vary an intestacy) **of a person who died domiciled in England and Wales on the grounds that reasonable financial provision has not been made for the applicant.

Question 2

Time Limit

Answer 2

An application must be made within six months from the issue of the grant of representation to the PRs, or later with
leave of the court. PRs are protected from any personal liabil-ity arising under any late permitted claim, provided that they wait six months from the date of the grant before distributing the estate to benefciaries.

Question 3

5

THE APPLICANT

Answer 3

1. *The** surviving spouse or civil partner**, if married to or in a civil partnership with the deceased at the date of death.
2. *A former spouse or civil partner who has not remarried nor formed a civil partnership. They may be barred from making a claim through a ‘clean break’ divorce.
3. ***A child **of the deceased or a person treated as a child of the family of the deceased (such as a stepchild).
   Adult children are unlikely to be successful in a claim if able-bodied and in employment.
4. *A person who was being maintained, wholly or partly, by the deceased before the death. The deceased needs to have been making a substantial contribution towards the
   reasonable needs of the claimant.
5. A person who was living with the deceased during the whole of the 2-year period immediately before the death as the spouse, civil partner, or same-sex partner of the deceased.

Question 4

REASONABLE FINANCIAL PROVISION

Answer 4

The process for determining what constitutes reasonable financial provision is two-part:
1. Have the will or intestacy rules failed to make reasonable financial provision for the applicant?
2. If so, what would be such provision?

Question 5

2

Standard for Spouses

Answer 5

1. If the applicant is a spouse, the standard is such financial provision as would be reasonable in all the circumstances, whether or not required for maintenance.
2. The court should consider what would be awarded in a divorce.

Question 6

Standard for OtherApplicants

Answer 6

For other applicants, the standard is such provision required for their maintenance such that they can live decently and comfortably according to their situation.

Question 7

4

Some guidelines considered by the court include:

Answer 7

*Financial resources and needs of the applicant, any other applicant, and any benefciary (now or in the future);
*Any moral obligation of the deceased to any applicant or benefciary;
*Size and nature of the net estate of the deceased; and
*Physical or mental disability of any applicant or benefcia-ry.

Question 8

TYPES OF ORDERS

Answer 8

(1) the transfer of property;
(2) payment of a lump sum;
(3) payment of income; and
(4) settlement of property on trust.

1. Orders can be made out of the deceased’s net estate at the date of death (that is, after funeral and administration expenses, debts and liabilities, and inheritance tax) and the deceased’s severable share of a joint tenancy.
2. The court also has pow-ers to make an order regarding property disposed of by the deceased before death if that disposal was intended to avoid the provisions of the 1975 Act.
3. For inheritance tax purposes, any order is read back to the date of death.