Claims under the Inheritance (Provision for Family and Dependants) Act 1975 Flashcards
What are claims under the Inheritance Act?
Claims made by persons who can argue that they have not received reasonable provision under the will or rules of intestacy
When can a failure to make a reasonable provision occur?
Either by deliberate decision of the deceased or accidental result of poor planning or no planning
What is the question for the court?
Whether the financial provision is reasonable - it is not about fairness
What are the steps the court will go through?
- standing
- timing
- what the applicant received from the estate
- the relevant standard of financial provision
- was the financial provision reasonable
- if not, court will use its powers to redistribute the estate
Who has standing to make an application?
- current spouses
- former spouses provided they have not remarried
- cohabitee of the deceased for a period of a whole 2 years ending immediately before death
- child of the deceased
- any person who was treated as a ‘child of the family’ - includes step children
- any person being maintained either wholly or partly by the deceased immediately before the death
What happens if another family member wants to claim but does not fit in any of the categories?
cannot make a claim
What is the key question regarding a person being treated as a child?
The treatment of the person by the deceased
What are the requirements for a cohabitee?
must be living together in the style of spouses even if not married. If they would not be regarded as a couple the applicant will not have standing. A sexual relationship is not essential and the cohabitation period must be for two years immediately prior to the death- temp absences will not stop the clock
When is someone not ‘maintained’ by the deceased?
If the deceased was paying them a proper wage under a contract for services or employment
What is the timing requirement?
The application must be made not later than 6 months after the date the grant of representation was granted. The application can be before the grant and in exceptional circumstances it can be extended
What are the relevant standard of financial provision?
- maintenance standard
- spousal standard
What is the maintenance standard and who is it for?
All applicants apart from spouses and the court must consider ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance’ - it is very specific for each applicant
What is the key question for the maintenance standard?
What does the applicant reasonably require in order to live decently and comfortably according to their life situation
What is the spousal standard?
The court must have regard to ‘such financial provision as it would be reasonable in all the circumstances of the case for the spouse to receive, whether or not that provision is required for their maintenance’ - what would the spouse have gotten in a divorce
What is the usual starting point for spouses?
Equal shares but this is not obligatory
