IDPA Claims Flashcards
What is the time limit to bring a claim under the IDPA?
6 months from date of grant of representation
Who is entitled to apply for financial provision under the IDPA?
- surviving spouse and civil partner;
- ex-spouse/civil partner - not remarried;
- child of deceased;
- any person who in case of marriage was treated as child of deceased (ie. stepkids);
- any dependants maintained by the deceased;
- cohabitants for whole period of 2 years immediately before death, living as married couple (though not formalised).
What is the statutory ground for a claim under the IDPA?
will or intestacy rules render it such that no reasonable financial provision is made vis-a-vis applicant.
- not based on what is ‘fair’ - but whether applicant has a genuine right to financial provision.
What are the two standards the court will consider when assessing what amounts to a ‘reasonable financial provision’, and when are they relevant?
Surviving spouse standard - higher-standard.
- not necessary to show that provision is required for their maintenance.
- standard might extend to ex-spouses (if specific criteria is met).
Maintenance standard (any other claimant) - considers what would be reasonable in all circumstances of the case for the applicant to receive.
What seven general factors will the court consider when determining what is ‘reasonable’ (section 3)?
1) applicant’s financial resources
2) size and nature of the net estate
3) Physical or mental disability of applicant/beneficiaries
4) Obligations and responsibilities deceased had towards other applicants/beneficiaries
5) Financial needs of estate’s beneficiaries and other applicants
6) any other matter (including conduct of applicant - ie. whether they care after deceased).
7) any resources applicant is likely to have in forseeable future.
What additional specific guidelines are relevant for claims by a non-child of deceased, but treated as such?
- basis by which deceased maintained them
- extent to which they assumed responsibility for their maintenance
- maintained them knowing they were not their child
- liability of any other person to maintenance applicant
What specific guidelines are relevant for claims brought by co-habitees?
1) Age of applicant and lenght of co-habitation;
2) applicant’s contribution to family life/expenses
When does the court have discretion to apply the spousal standard when considering a claim brought by a former spouse?
- only been 12 or less months since divorce
- no decree of dissolution was made (ie. settlement).
What property can the court approppriate from the net estate to satisfy a IDPA claim?
1) succession estate,
2) DMCs made to others,
3) JT share in home (by severance), and
4) Property disposed of less than 6 years before death, with aim to defeat application for financial provision.
What powers does the court have in issuing an order to satisfy a dependency claim?
Wide discretion - can order:
1) periodical payments
2) lump sum
3) transfer of oproperty
4) settlement of property
5) acquisition of property for transfer
6) vary marriage settlements
7) vary trusts in which deceased’s property is held.
- ie. award an interest under a trust by making dependant a life tenant.
How many years must a co-habitee have lived with the deceased to fall within the relevant category?
2 years immediately before death
What will extinguish a spouse’s entitlement to apply under the IDPA?
if they remarry
What must the court be satisfied with to extend time limit to bring IDPA claim?
Need to show ‘arguable’ case fit to go to trial. Onus is on applicant to show there are special reasons why it missed timelimit.
- Circumstances surrounding delay
- Whether negotations were commenced within time limit
- If estate had already been distributed before notifcation fo the claim.
- Whether refusing permission would leave applicant without any other recource.
What additional factors are taken into account for other applicants (dependent gateway) ?
1) Length of time/basis of deceased’s maintenance and extent of contribution
2) Whether deceased assumed responsibility for maintenance.
When might a life tenant make a claim under IPDA?
On grounds that income generated by lifetime trust is inadequate.
