Family provisions + post-death variation

Question 1

Who can apply for a family provision?

Answer 1

• spouse/CP
• former spouse/CP who hasn’t remarried
• D’s child
• any person D treated as chid of family
• anyone maintained by D immediately before D’s death
• anyone who lived in the same household as his spouse during whole 2 years ending immediately before D’s death

Question 2

Time limit for applying for family provisions

Answer 2

6 months from grant of representation/probate

Question 3

The 1 ground for the claim for family provisions

Answer 3

Disposition of D’s estate doesn’t make “reasonable financial provision” for C

Question 4

The 2 standards for judging “reasonable financial provisions”

Answer 4

Spouses: based on the circumstances, regardless of maintenance
Anyone else: what’s reasonable in the circumstances for maintenance

Question 5

How is the estate against which a family provision is made assessed?

Answer 5

Net estate: anything passing under the will or intestacy, and survivorship

Question 6

What is the effect of a post-death disclaimer?

Answer 6

The original beneficiary is treated as if he’s dead, and the asset passes onto whoever would be eligible if the original beneficiary pre-deceased D

Question 7

What is the IHT and CGT effect of a post-death variation?

Answer 7

It’s read back into the will (treated as if D gave the asset directly to the new beneficiary)

Question 8

Conditions for a variation/disclaimer to be read back into the will for IHT or CGT purposes:

Answer 8

• it’s in writing + signed by the original beneficiary,
• it’s made within 2 years of death,
• it’s not made for consideration,
• states that reading back applies

It’s the same for a disclaimer, except last condition not needed!

Question 9

What is the consequence of reading back a variation/disclaimer into the will for CGT purposes?

Answer 9

There’s no CGT charge on it- the new beneficiary is treated as if acquired the property on the date of D’s death