Family Provision and Post-death Variations Flashcards
What is the purpose of the Inheritance Provision for Family and Dependants Act 1975?
Allows certain groups of people to apply to the court for a benefit from the estate which they have been left out of (or have not be able to inherit under intestacy rules).
List the categories of applicant under the 1975 Act.
a) Spouse or civil partner;
b) Former spouse or civil partner of deceased who has not remarried (unless on the divorce order they were barred rom making a claim);
c) Children of deceased;
d) People treated as family - in relation to any marriage or civil partnership of the deceased (or people such as a stepchild or child of a cohabited that the deceased assumed a parental role for).
e) Any person who was being maintained by the deceased immediately prior to death.
f) Any person who during whole of the period of two years (ending immediately before the date deceased died) was living in same household, or as the husband or wife, of the deceased.
Explain in further detail when children of the deceased can make a claim under the 1975 act.
Adopted children are not included in this category (nor are step children).
Applications by infant children are not usually controversial.
More challenging for adult children. if adult child is in employment and likely to have earning capacity for foreseeable future, unlikely they will be able to claim (unless a special circumstance applies).
What does being maintained by the deceased mean for the purposes of the 1975 act?
Where deceased was making substantial contributions in money or money’s worth towards the reasonable needs of that person (other than contributions made for full valuable consideration in a commercial arrangement).
Explain the special circumstances under which an adult child may be able to make a claim (even if they are in employment and likely to have earning capacity for the foreseeable future).
Special circumstances include:
1) moral obligation owed by the deceased;
2) adult child is disabled;
3) adult child was working for the deceased for many years on a low wage;
4) child making sacrifices in order to care for the deceased prior to death.
Explain in further detail category (e) of the 1975 Act - ‘any person who immediately before death of the deceased was being maintained wholly or partly by the deceased.
Catches those not falling within other categories but were a financial dependant.
The requirement the maintianece must be immediately before death isn’t taken literally. It refers to general arrangements for maintenance which existed during the lifetime of the deceased.
Question is whether there was a settled basis or arrangement between parties as regards to maintenance. Temporary breaks in this maintenance just before death does not negate a claim.
The arrangement also cannot be commercial (so a housekeeper or live in carer is not able to claim).
Explain in further detail category (d) - any person (not being a child of the deceased) who was treated by the deceased as a child of the family.
Covers those who are not legal children but were deceased acted as a parent towards them.
Step children have succeeded under this category, but must prove deceased acted as a parent towards them to be successful.
Further explain category f under the 1975 act (those living in the same household as husband wife or civil partner during whole period of 2 years ending immediately before death).
Cohabitants (not married spouse or civil partner) can claim under this category if they satisfy the following three conditions:
1) must have been living in same household as deceased;
2) as there husband wife or civil partner; and
3) this must have been for the whole two years immediately preceding the deceased’s death.
Explain the requirement that the cohabitant must have been living in the same household as the deceased (in order to claim under category f).
This means living together as one unit.
Doesn’t include living under one roof but as separate entities.
Effectively this is construed as being tied. by their relationship, and having private and public acknowledgement of the mutual protection and support that binds them together.
Explain the requirement that the cohabitant must have been ‘as a husband, wife or civil partner’ (in order to claim under category f).
This does not mean literally.
Applicant and deceased must have lived together as if they were married.
Test is whether a reasonable person with normal perceptions would regard them as living together as husband and wife or civil partners.
Absence of sexual relations does not negate this being found.
The relationship as a couple must however be openly acknowledged (ie not secretive).
Explain the two years ending immediately before death requirement (in order to claim under category f).
Temporary situations (eg hospitalisation or care home) for a period before death does not disqualify cohabitant from a claim.
Court considers whether a reasonable person would regard them as living as husband and wife.
Some degree of permanence and commitment is needed.
Explain the decision of Gully v Dix
Man and woman cohabitants for 27 years.
Applicant walked out sometimes due to deceased’s drink problem, but always returned.
They were apart for 3 months prior to death.
Court found however that the two years requirement was satisfied as they had ‘a substantial and enduring relationship akin to marriage which had lasted for 27 years’.
Does cohabitant have tp li ve in same house as deceased to qualify under the act?
No provided they live as one unit - no requirement to technically live under same roof.
Is there a time limit on making an application under the 1975 Act?
Must be made within 6 months from date of grant of representation.
Application can also be made before the grant is issued.
Application is made online or by postal search of probate records.
What is a standing search?
Ensures applicant is notified of any grant which issues in the following 6 months.
Can the time limit for a 1975 act application be extended by the court?
Yes but only if the court is satisfied there is a good reason for the delay.
List the factors the court will consider when seeking to determine whether to extend the period for an application under the 1975 Act.
Court will onside the following factors:
1) Merits of applicant’s claim for provision;
2) How promptly applicant sought permission;
3) Whether the estate has already been distributed;
4) Whether, if application was refused, applicants would have had any other remedy; and
5) Whether PRs/ beneficiaries had notice within time limit of a possible claim.
Explain the ‘surviving spouse standard’ for the reasonable financial provision test.
Allows surviving spouse or civil partner such provision as is reasonable in all circumstances, whether or not the provision is necessary for their maintenance.
Relevant factor here is how much they may have received had there have been a divorce.
Explain the grounds for an application under the 1975 Act.
Whether or not the estate makes reasonable financial provision for the applicant.
This is an objective test.
Burden is on applicant to show this is satisfied.
There are two standards for judging the reasonable financial provision test:
1) Surviving spouse standard;
2) Ordinary standard.
Explain the ‘ordinary standard’ for the reasonable financial provision test.
Applies to all other applicants (who are not spouse or civil partner of the deceased).
This allows financial provision that would be reasonable in the circumstances for the applicant to receive maintenance.
Maintenance is not defined in the act, but it has been deemed to mean payments which enable the applicant to discharge cost of daily living at whatever standard of living is appropriate to them (eg how much they need for rent, food bills etc).
The limitation to maintenance in the ordinary standard means that if the applicant is able to pay their own expenses, they won’t obtain anything and will fail the test.
List the common guidelines in the act which help courts decide whether or not to make an award under the 1975 act (and whether the applicant meets the releasable financial provision test).
Guidelines are:
1) Financial resources and needs of applicant, other applicants, and beneficiaries of the estate now and in the future;
2) Deceased’s obligations towards any applicant or beneficiary (includes legal obligations such as the duty of a parent to maintain their infant child, as well as other moral obligations);
3) Size and nature of the estate (easier to make successful claim against large estate);
4) Physical or mental disability of any applicant or beneficiary;
5) Anything else which is relevant such as the conduct of the applicant (such as wishes of the deceased in documents which weren’t part of the will).
Explain the guideline ‘financial resources and needs of applicant, other applicants, and beneficiaries of the estate now and in the future’ when deciding the entitlement of the applicant for readable financial provision under the 1975 Act
Court balances needs and resources of applicant against other beneficiaries and those with a claim to the estate.
Here they take into account earning capacity and financial obligations and responsibilities.
Is it possible for someone who killed the deceased to make a 1975 claim? Technically yes but courts would be reluctant to allow it.
Technically yes but courts would be reluctant to allow it.
Once satisfied the claimant qualifies as an applicant, and they are entitled to reasonable financial provision (either under the spousal standard or the ordinary standard) was happens next?
To determine the nature of the provision which should be made.
