Family Provision and Post- death Variations Flashcards
Where must the deceased have been domiciled for the Inheritance (Provision for Family and Dependants) Act 1975 to apply?
The deceased must have died domiciled in England and Wales.
What are the categories of applicants for the 1975 Act?
The spouse or civil partner of the deceased.
A former spouse or civil partner of the deceased who has not remarried.
A child of the deceased (whatever the child’s age).
Any person treated by the deceased as a child of the family in relation to any marriage
or civil partnership of the deceased, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent.
Any person who, immediately before the death of the deceased, was being maintained
by the deceased either wholly or in part.
Any person who, during the whole of the period of two years ending immediately before
the date when the deceased died, was living in the same household as the deceased, and as the husband, wife or civil partner of the deceased.
What usually prevents a former spouse from making a claim under the 1975 Act?
The divorce court often orders that the former spouse cannot claim family provision against the other spouse’s estate.
Who does a child of the deceased include?
Adopted children but not step-children.
What are the special circumstances that will be considered for claims made by an adult child in gainful employment?
Whether a moral obligation was owed by the deceased.
Whether the adult child has a disability
Whether the adult worked for the deceased for many years for a low wage.
Whether the child made sacrifices in order to care for the deceased.
How does the 1975 Act provide that a person is ‘maintained’ by the deceased?
If the deceased was making ‘a substantial contribution in money or money’s worth towards the
reasonable needs of the applicant otherwise than for full valuable consideration pursuant to an arrangement of a commercial nature’.
Must the timing of the maintenance be immediately before death?
No, a temporary break in maintenance immediately prior to death does not prevent a claim.
What is meant by ‘living in the same household’?
If two people are tied by their relationship.
The tie of that relationship may be made manifest by various elements, not simply their living together under the same roof, but the private and public acknowledgment of the mutual protection and support that binds them together.
How is it determined that an applicant and a deceased lived together as if they were spouses or civil partners?
By looking at whether a reasonable person with normal perceptions would regard them as living together as husband and wife or civil partners.
The relationship as a couple must be openly acknowledged.
There has to be some degree of permanence and commitment in the relationship.
Does a temporary separation disqualify a cohabitant from satisfying the condition that they and the deceased lived together for the two years immediately before death?
No.
What is the time limit for a claim under the 1975 Act?
Applications must be made within six months from the date of the grant of representation, however, the application can be made before the grant is issued.
How can a potential applicant under the 1975 Act discover whether a grant has already been issued?
They can make an online or postal search of the probate records or they can make a ‘standing search’ which ensures that the applicant is notified of any grant which issues in the following six months.
What will the court consider when exercising its discretion to extend the time limit for a family provision application?
The merits of the applicant’s claim for provision;
How promptly the applicant sought permission;
Whether the estate has already been distributed;
Whether the personal representatives or beneficiaries had notice within the time limit of a possible claim; and
Whether the applicant
would have another remedy if permission were refused.
What is the ground that must be satisfied for a claim under the 1975 Act?
That the deceased did not objectively make reasonable financial provision for the applicant.
What are the two standards for judging reasonable financial provision?
The surviving spouse standard.
The ordinary standard.
What is the surviving spouse standard?
Allows a surviving spouse or civil partner such financial provision as is reasonable in all the circumstances ‘whether or not that provision is required for his or her maintenance’.
What is the ordinary standard for judging reasonable financial provision?
It applies to all other categories of applicants except surviving spouses/ civil partners and allows such financial provision as it would be reasonable in all the circumstances for the applicant
to receive for his maintenance.
How is maintenance defined in the ordinary standard for judging reasonable financial provision?
Payments which enable the applicant to discharge the cost of their daily living at whatever standard of living is appropriate to them.
It does not extend to any or everything which it would be desirable for the applicant to have.
What is the limitation to maintenance in the ordinary standard for judging reasonable financial provision?
An applicant who is able to pay for their living expenses out of their own resources will not obtain an award.
What are the common guidelines that assist the court in determining whether the will and/ or intestacy makes reasonable financial provision for the applicant?
The financial resources and needs of the applicant, other applicants, and beneficiaries of
the estate now and in the foreseeable future;
The deceased’s obligations (including legal and moral obligations) towards any applicant or beneficiary;
The size and nature of the estate;
The physical or mental disability of any applicant or beneficiary;
Anything else which may be relevant, such as the conduct of the applicant.
What are examples of ‘anything else which may be relevant’ in the common guidelines?
A testator may leave written reasons for excluding the applicant from their will and the court has discretion as to how much weight to attach to the reasons.
A prolonged period of estrangement between the applicant and the deceased.
The fact that the applicant killed the deceased.
What are the special guidelines according to the different categories of applicants?
Where the applicant is the surviving spouse or civil partner, the court takes into account the
applicant’s age and contribution to the welfare of the family (including looking after the
home or caring for the family), the duration of the marriage or civil partnership and the likely
financial settlement if the marriage or civil partnership had ended in divorce or dissolution
rather than death.
On an application by a child of the deceased the applicant’s education or training requirements are considered.
Where the application is by a cohabitant, the court
should take account of the applicant’s age, the length of the period of cohabitation and the
contribution made by the cohabitant to the welfare of the family.
From which part of the estate can the court make orders as to financial provision?
The ‘net estate’ which includes both the property which the
deceased has, or could have, disposed of by will, and the deceased’s share of any joint
property passing by survivorship if the court so orders.
What orders for financial provision can a court make against the net estate?
Orders for periodical payments.
Lump sum payments.
The transfer of specific property to the applicant.
In making any order, the court will declare which beneficiary bears the burden of the order.
