Family Provision Flashcards
Nature of the right to bring an application
- personal right, does not continue after death of applicat
- Whyte v Ticehurst 1986 - husband died, widow made claim but died before it was heard. PRs not permitted to continue on behalf of widow’s estate.
- if child of deceased adopted into another family before claim made, child loses right to claim under I(PFD)A 1975
- Re Collins (Deceased) 1990 - died intestate, husband inherited estate. Son, adopted into another family after death but before application not successful with claim as no longer qualified as deceased’s child.
- Nathan (Deceased), Nathan v Leonard 2003 - Ct looked at whether clause to deter beneficiaries from bringing claim was repugnant to public policy - in this case it wasn’t.
Domicile
- deceased must have been domiciled in England and Wales.
- everyone treated, by law, as having a domicile of origin at birth - Country were born in
- person can acquire domicile of choice if they can be shown to intend to make their how in a new Country towards end of life. If person ceases to reside there and has no intention of returning to new Country, then lose domicile of choice
> Cyganik v Agulian 2005 - Ct of A held deceased domiciled in Cyprus and emphasised “adhesiveness” of domicile of origin. “cogent and convincing” evidence needed to prove change in domicile - burden of proof on person alleging has been a change of domicile.
- not necessary to applicant to be domiciled in England and Wales.
Locus standi
- S1(1) I(PFD)A 1975 allows 6 categories of applicant to apply on grounds that Will or rules of intestacy fail to make reasonable financial provision for applicant
>Watkins v Watkins 1953 - H deserted W and never heard of again, W remarried - as no contact from H at all, Ct presumed died so wife had locus standi
>Re Peete 1952 - W not kept in contact with H family so Ct didn’t accept she had locus standi
>Re Sehota 1978 - deceased had 2 marriages under Hindu law and Domicile of choice was England. Left all prop to 2nd Wife, but Ct held 1st wife could make app as she was married to him.
s25(4) void marriages - void marriage spouse will be treated as spouse if can prove that app entered into marriage with good faith, marriage was not dissolved or annulled, app didn’t remarry
>Gandhi v Patel 2002 - Hindu ceremony which didn’t comply with Marriage Acts didnt give rise to void marriage - but even so app didnt enter with good faith.
Separated spouses or civil partners
- prima facie entitled to apply, but at or after time Court may order can’t apply under s15 I(PFD)A 1975 if they think it is just to make order
- even if order is in place, only effective to prevent application if decree in force at date of death and separation continued until death of deceased.
- similar rules if Civil partnership, as Ct make order under s15ZA preventing application
S1(1)(b) - former spouse or civil partner of deceased who hasn’t remarried or entered into further civil partnership
App can only be made if:
- applicant has been validly married to deceased
- during lifetime of deceased, marriage was dissolved or annulled
- applicant not remarried before or after death of deceased - treated as remarried even if that marriage is void or voidable (s25(5))
- Ct may make order preventing from making application.
- traditionally Court reluctant to give former spouse/civil partner order as would be able to claim under family law .
> Barrass v Harding and Newman 2001 - divorced in 1964 and as part of settlement gave C flat to live in. C moved in with son and got settlement instead. D remarried but 2nd wife died, left assets to wife’s sister. Ct held that C had received provision from the divorce.
> Chekov v Fryer and Another 2015 - High Ct held Ct order preventing former spouse/civil partner from making claim doesn’t prevent them from claiming under s1(1)(ba) I(PFD)A 1975. - former civil partner now included under Civil Partnership Act 2004.
s1(1)(ba) - a person living in the same household as husband or wife or civil partner
- claim can be brought by person who throughout 2 years before death was living in the same household as deceased as spouse or civil partner but wasn’t married.
- must have been living with at the date of death and there were no breaks during the 2 years before death, and openly living as spouses/civil partners
> Re John Watson (Deceased) 1999 - lived together for some years, had sex previously but when living together wasn’t having sex. Held living together as spouses and absence of sex not conclusive. - if can’t cohabit immediately before death (maybe due to deceased’s last illness), Ct likely to follow Jelley v Illife 1981 when Ct of A asked whether arrangement for cohab was subsisting at time of death.
> Gully v Dix 2004 - cl left home in August 2001, D died in October 2001 - ct of A held but for dec’d problems. they would have lived together until death and there had been settled state of affairs so claim was successful.
> Kaur v Singh Dhaliwal 2014 - cohab for 1 year, 49 weeks, didnt live together for whole time due to accommodation and family issues, but not relevant as had been in place throughout 2 years before, so Ct held settled state of affairs and cl can make claim.
> Banfield v Campbell 2018 - elderly couple entered romantic relationship, unofficially engaged, but no plans to marry. Mr’s health deteriorated, slept in separate rooms and Mrs found relationship to be burden but he needed her. Mrs died when on holiday with Mr. Ct held he could claim as there was element of mutual support in relationship, they booked holiday together and Mr’s will left 50% of estate to Mrs.
>Thompson v Raggett 2018 - life interest rejected by Court, as left funds to tenants in property, expected C to go into care and didn’t want his money to go to C’s children - Ct awarded C the home, £169k for care and £29k to renovate house.
> Swetenham v Walkley 2014 - close elderly relationship as partners, helped with washing and other bits, but D didn’t tell C he retired and maintained separate home, but Ct held lived together as h and w.
s1(1)(c) - a child of the deceased
- doesn’t include stepchildren.
- no age limit for children seeking award but where child is able bodied and able to earn a living, its possible that no provision is considered reasonable.
- Ct would look at special circumstances, such as moral obligation by parent.
- classified as one of obligations and responsibilities re s3(1)(d) I(PFD)A 1975 as on of special considerations.
>Re Coventry 1979 - must be some sort of moral claim to be maintained by deceased for some reason that was unreasonable that no or no greater provision was made. - moral claim would be readily found if child disabled, or worked in family business for low wage on expectation that would be provided for on death. - Re Abram (Deceased) 1996
- in absence of obligation, Ct took view that test didn’t have moral duty to provide for maintenance of adult child.
>Re Jennings 1994 - if adult child is able to earn and does earn, must be some special circumstance, moral obligation, before look at whether made reasonable financial provision.
>Re Hancock (Deceased) 1998 - not required to show obligation but if facts disclose that adult child had a job and was earning then unlikely to succeed without special circumstances.
>Espinosa v Bourke 1999 - ct of A held that 57yr old daughter didn’t have to show special circumstances - Ct have to take into account all circumstances
>Re Nahajec (Deceased) 2017 - daughter didn’t have close relationship with father but she tried, wanted to retrain as vet. Claim allowed as not provided for in Will, had moral claim out of estate, not her fault relationship broke down, nothing to suggest would waste award, genuine not fanciful desire to improve herself and other things. - Cl didn’t have to show financial dependence on deceased, paid attention about how she would use money and beneficial impact.
>Ubbi v Ubbi 2018, claim by minor child as lack of expectation by testator for children would be privately educated resulted in no allowance being made for private school fees.
s1(1)(d) - a person treated as a child of the family
“any person (not being a child of the deceased who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family”
- includes stepchildren, provided there is proof that step-parent treated child as child of the family, or a child of the deceased’s family, such as an orphaned nephew.
- not confined to infant children - Re Callaghan 1984
- Inheritance and Trustees’ Powers Act 2014 amended s1(1)(d) to include any person who was treated as a child of a family by the deceased in relation to any other family in which the deceased had a parental role.
- means more than something more than display of mere affection, need some indication of treatment of that child as an “unfledged person”
>Leach v Linderman 1985 - Ct of A allowed stepdaughter to claim against step mother, but didn’t live in same house, wasn’t maintained by her but Ct found had assumed responsibility for app and treated her as a daughter.
>Gora v Treasury Solicitor 2003 - stepdaughter claimed, money came from inheritance by step grandmother, went to crown as no descendants, Cl married to older man, had no low income, autistic son who needed constant care - app granted and deceased promised wife that would leave her portfolio of shares to claimant.
s1(1)(e) - a person maintained by the deceased
- includes anyone not within previous categories who immediately before the death of the deceased was being maintained by the deceased either wholly or in part.
- applicant must show:
1. they don’t come within any other category
2. deceased wholly or partly maintained the applicant or making substantial contribution, in money or money’s worth, towards reasonable needs
3. they were being maintained by the deceased immediately before death
4. deceased was not making contribution for full value consideration pursuant to an arrangement of a commercial nature
5. arrangement for maintenance was in place when deceased died. - deceased and applicant don’t have to be related nor have lived under same roof. Maintenance requirement will be satisfied if deceased provided accommodation for the applicant even if accommodation was shared with deceased and parties were otherwise financially independent
- Law commission rejected idea of minimum period of dependence to establish claim but period of dependent clearly relevant in assessing an award.
Immediately before death
- agreement must be in existence when died.
>Re Beaumont 1980 - Ct to look at all normal habitual state throughout relationship - for ex when dependent nurses deceased through illness but in final period was hospitalised and no provision made for maintenance. - app could be in difficulty if could not establish there was a chance of reconciliation
>Jelley v Iliffe 1981 - test was satisfied if deceased was making substantial contribution on settled basis that was in force at death or would have lasted until death but for approach of death. - if settled state of affairs comes to end for other reasons before died, wouldn’t have been maintaining.
> Kourkey v Lusher 1982 - had a wife, but also a girlfriend, left clothes at both places, but after holiday with wife, decided wanted to be with her and didn’t go back to gf. Ct held that evidence pointed to having abandoned financially responsibility for gf so her application failed. - if was implied condition that deceased had assumed responsibility for app, referred to as a demonstrable act of assumption.
- Jelley v Iliffe - Ct said that bare fact of maintenance generally raised presumption of assumption of responsibility.
>Bishop v Plumley 1991 - Ct of A referred to commonsense approach - one should look at the situation in the round.
Reasonable Financial Provision
Sets out 2 stage process:
1. has the will/intestacy failed to make reasonable financial provision?
2. If so, what would amount to reasonable provision?
Test is objective.
> Ilott v The Blue Cross 2017, revered decision in Ilott v Mitson 2015 and ordered the dec’d estranged daughter who had been disinherited by a number of charities, should only receive £50k. Argument that £50k was of little or no value was rejected as it could be used to replace household items.
- Ct said that all s3 guidelines must be considered and after that, a single assessment of reasonable financial provision should be made.
- 2 standards of provision - surviving spouse standard treated as if spouses were divorcing, or the other one, where approach is maintenance. S1(2)(a) - such provisions as would be reasonable in all circumstances.. whether or not the provision is required for the maintenance of the applicant. s1(2)(b) - such provision as would be reasonable in all circumstances of the case for the applicant to receive for his maintenance.
- maintenance doesn’t mean merely subsistence - Re Christie 1979
- denotes that payments that directly or indirectly enable applicant to discharge the recurrent cost of daily living. Doesn’t generally include substantial capital benefit such as paying tax on a lifetime gift - Re Dennis (Deceased) 1981
- Re Coventry 1979 - maintenance means such provision as would be reasonable in circumstances to enable the applicant to maintain themselves in manner suitable to those circumstances
- Level of support determined by the level of support the deceased encouraged the applicant to adopt - Malone v Harrison 1979
- Maintenance may denote wellbeing, health and financial security of applicant and immediate family, even if only way which can be guaranteed by the provision of capital. No doubt that provision of a house as a home from the applicant may fall within definition of maintenance.
Objective test
- s3(5) Ct shall take into account the facts known to the Court at the date of the hearing.
- Gives statutory approval to the test in Re Goodwin 1968 - not whether deceased thought they were acting reasonably nor whether they did behave reasonably according to circumstances known to them.
- Question is whether will or intestacy has made reasonable financial provision and not whether it was unreasonable on the part if the testator to have made no provision or limited provision for the dependant.
- Time to ask question is at the date of the hearing. Provision must be considered at death, and prompt decision made as to whether to make an application, objective test and time of application of test enables court to take into account supervening events.
>Re Hancock (Deceased) 1998 - Ct was able to take into account a windfall to the estate, which had effect of making the modest provision for applicant seem less reasonable in relation to that made for other beneficiaries.
Common guidelines
-s3(1) gives guidelines on whether reasonable financial provision should be made using their discretion under I(PFD)A 1975. Ct have to give regard to:
- Financial resources and needs of applicant, any other applicant or beneficiary, now or in foreseeable future (s3(1)(a)-(c)). Earning capacity, pension and social security benefits all relevant as well as capital assets. Ct also take into account financial obligations and responsibilities (s3(6)). if needs of beneficiaries are great, application is likely to fail. Court have to regard to type of relief that would be most appropriate as in Harrington v Gill 1983, where applicant awarded life interest in house that she lived in with deceased and not money.
>Graham v Murphy 1996 - Ct said that order it was making was not to provide a high standard of living for recipient but enough to buy modest property. - Any obligations and responsibilities of the deceased towards applicant or beneficiary entitled under Will or intestacy (s3(1)(d)). Includes moral obligations as well as legal owed by deceased to app and other bens. Sometimes one spouse owed moral obligation to other but dec’d held not to owe spouse much of moral obligation in Re Gregory 1971 - separation and lack of financial support caused applicant’s claim to fail.
- legal or blood relationship not necessary for moral obligation to arise, and obligation created by blood relationship may not carry much weight - Re Callaghan 1984 - in case of adult children.
- If estate not large enough to discharge all dec’d obligations, ct have to weigh up conflicting claims.
>Re Jennings 1994 - Ct only consider dec’d obligations owed immediately before death. Accepted facts of case that dec’d owed legal and moral obligations to app during apps minority but since grown up.
> Stephanides v Cohen 2002 - balances dec’d moral and legal obligations. Widow applies for order that reasonable financial provision be made for her. Son also had claims left in it - Ct had to balance competing , but satisfied widow’s claim more compelling that the son’s, took into acc all behaviour so widow got £80k in cash then rent to son. - Size and nature of net estate of the deceased (s3(1)(e)). Re Fullard 1981 - Ct reluctant to interfere on case of small estates, so sometimes Judge orders costs to be paid by applicant personally. If too small, no order could be made and Ct unwilling to make order if only effect was to relieve DWP of need to maintain applicant. Also limit scope in making order if vase majority of dec’d assets tied up in house, required for beneficiary.
- Any physical or mental disability of app or person entitled (s3(1)(f))
>Re Debenham 1986 - Ct will treat favourably a claim by disabled adult child - award made for 58 year old disabled child.
>Re Watkins 1949 - free hospital accommodation was factor to be taken into account, so held reasonable to leave nothing out of £23k estate to daughter in mental hospital with no hope of getting out.
>re E 1966 - payment may be ordered for pocket money for applicant. - Any other matter incl conduct of app. Re Cook 1956 - dec’d daughter devoted life to care for him was consideration, but in Williams v Johns 1988 app conduct in causing shame and emotional distress to adoptive mother taken into account to dismiss claim.
>Re Ducksbury 1966 - Ct found father had moral obligation to daughter, even after she wrote nasty letter as apologised after.
>Sivyer v Sivyer 1967 - lump sum for daughter in local authority, was increased as house bought by both parents.
> Espinosa v Bourke 1999 - held in each case that all s3(1) criteria must be applied, the obligations are moral and legal, adult child capable of work should have to prove weighty factor to show failure to make reasonable financial provision. Daughter gave up work to care for father, then moved and others cared for him. Promise to mum that dad would leave some of estate to daughter, ct said that she was entitled to some so got share to pay off debts.
Particular guidelines - surviving spouse of civil partner standard
- s1(2)(a) I(PFD)A 1975 states such provision would be reasonable in all circumstances, whether or not provision is required for the maintenance of the applicant.
- Ct will consider:
1. Age of applicant and duration of marriage/civil partnership
2. contribution by applicant to the welfare of the family, including looking after the home and caring for the family.
3. provision the application might reasonably have expected to receive if, on the day of death, they divorces/dissolved civil partnership - no upper or lower limit. - starting point is amount could have expected to receive on divorce (s3(2))
- Ct can apply same rules to judicially separated spouses or former spouses who haven’t remarried under s14(1)(b) if:
- died within 12 months of decree or nullity being made absolute or grant of decree of judicial separation.
- No app has been made for financial provision in the matrimonial proceedings or if there has, has not been determined at death.
> Re Fullard 1981 - Ct didnt envisage claims where financial arrangements on divorce settled by clean break settlement, unless some substantial change in circumstances.
Particular guidelines - applications by the spouse
- may be successful if deceased miscalculated what would be fair provision for spouse.
>Re Besterman 1984 - widow made app, married for 18 years, high standard of life but she had no means of her own. Left life interest in £100k, personal chattels and works off art, thought the money would allow her to continue living her lifestyle. awarded 1/4 of estate, as the circumstances had changed. Considered if spouse was young enough to seek employment as well as other guidelines.
> Re Bunning 1984 - app gave up job to help in business, no resources of own except small amount he gave her, was young enough to resume working. She had left him 4 years before died, but 15 year marriage, but ct found mitigating circumstances and Ct awarded her £60k as on divorce she would have received half, so took account of that, as well as what she had already had, and the costs of application.
> Re Krubert 1996 - Ct of A when assessing merits, provision of what expected by divorce is only one factor, should take into account all other factors then compare with what would have been if divorced, had to only meet spouse’s reasonable needs. had bought a plot and built house on it, Will left her life interest in house, personal chattels and £10k. CT gave her residual estate but only life interest in house as she was likely to move.
- No essentially difference between claims by widowers and widows - Re Clayton 1966
> White v White 2001 - major effect on claims. Provision to be made for spouses follows principles applicable in divorce cases. No place for discriminating between H and W according to the roles they played within the marriage. if contributed equally, doesnt matter which earned money and built up assets. Should be equality of division on divorce unless good reason for something else. When assessing financial needs, ct still look at age, health and accustomed standard of living.
> Adams v Lewis - applied White. Married 54 years, 12 kids, separation for 18 months. left C household goods, personal effects and £10k. C said not enough and wanted house. Daughters accepted not reasonable, but house too big for her. J held that didnt make reasonable provision bearing in mind duration, contribution by raising kids, and looking after home. Applied principle in Besterman and White - ordered no reason to depart from equality, so ordered she got family home but reduced legacy to £5k.
Cunliffe v Fielden 2005 - execs appealed against order that widow should be paid lump sum from estate. C was housekeeper 18 months before died, had no assets of her own and became wife 13 months before died. left residue to several bens, C was one. Ct of A held appropriate to consider White but didnt give rise to presumed entitled to equal division, but as short marriage ct failed to take into account so reduced award to £600k instead.
> Lilleyman v Lilleyman 2012 - married for 2 years, estate £6mil. Left C limited right to occupy 2 props, and annuity of £378 per month and personal chattels worth £18k. Claimed not enough and wanted share in family home, relying on Miller v Miller 2006 that shouldnt revert to life before marriage. D’s sons said that should be based only on her needs. Ct granted claim, as not reasonable as not limited to providing financial security for rest of life. Gave her entire interest in family home and apartment, plus estate’s future interest in another prop. Ct considered breakdown of relationship between C and D’s kids, and wouldnt be able to maintain interests in same prop.
Particular guidelines - former spouses who have not remarried
- S3(2) i(PFD)A 1975 states factors are:
1. age of app and duration of marriage
2. contribution made to welfare of family, contributions to looking after house or caring for family. if died within 12 months of decree absolute or nullity and no order for financial provision then Ct may apply surviving spouse standard.
>Re Fullard 1981 - married 1938, divorced 1976. Both worked and accumulated similar amounts of savings. Settled finances on divorce and agreed that neither would claim periodic payments from other. app claimed after death, Ct rejected app. - Would only be able to have 2 possible situations where Ct would consider claim:
- Where long-standing periodic payments and paying spouse accumulated capital
- whether death of deceased unlocks pension funds or life assurance policy.
- Conduct of either party is generally irrelevant, unless extremely bad.
