Inheritance (Provision for Family and Dependants) Act 1975

Question 1

What right do certain individuals have under the 1975 Act?

Answer 1

They have the right to make an application to vary the content of a Will or intestacy after the deceased has died

(they do not have legal right to inherit any fixed proportion of assets of the deceased’s estate)

Question 2

What is the eligibility criteria for making an application under the 1975 Act?

Answer 2

Applicant must:

• be within jurisdiction of the 1975 Act
• demonstrate that they fall within a recognised category of eligible applicants
• make claim within the prescribed time limit

Question 3

What is the jurisdiction of the 1975 Act?

Answer 3

It only applies where the deceased died domiciled in England and Wales

Question 4

What are the different types of domicile?

Answer 4

• domicile of origin
• domicile of dependancy
• domicile of choice

Question 5

What is the domicile of origin?

Answer 5

Determined at birth and is based on the father’s domicile if the parents were married or mother’s if they were not

Question 6

What is the domicile of dependancy?

Answer 6

If the relevant parent changes domicile, the domicile of children under 16 changes too

Question 7

What is the domicile of choice?

Answer 7

Individual can choose to sever all ties with their domicile of origin. Intention to change domicile must be permanent.

Question 8

What are the recognised category of applicants that can make an application under IPFDA 1975?

Answer 8

• spouse/civil partner of the deceased
• former spouse/civil partner who has not remarried or formed a subsequent civil partnership
• a person (other than a spouse/civil partner) who cohabited with the deceased as if they were spouses/civil partners for two years prior to their death
• a child of the deceased
• any person who was treated by the deceased as a child of their family (eg step child)
• any other person who was maintained (wholly or partly) by the deceased immediately before their death

Question 9

If a child is adopted do they count as an applicant for their adoptive parents and biological parents under the 1975 Act?

Answer 9

Only adoptive parents

Adoption severs all ties with biological parents

Question 10

What form of maintenance is required for applicant under ‘any other person who was maintained by the deceased immediately before their death?

Answer 10

• financial maintenance is required
• deceased must be making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature

Question 11

What are the time limits for bringing an application under the IPFDA?

Answer 11

Cannot be made more than six months after the date the grant was made

Can be made before grant is issued

Question 12

Can the time limit for bringing an IPFDA application be extended?

Answer 12

Yes - court has discretion to extend the time limit for making a claim

Question 13

What must the applicant show when requesting the court to extend the time limit for bringing an IPFDA application?

Answer 13

They must show that there were special reasons for having exceeded the time limit

And

They have an arguable case fit to go to trial

Question 14

What will the court take into account when considering an application to extend?

Answer 14

• the circumstances surrounding the delay
• whether negotiations were commenced within the time limit
• if the estate had already been distributed before notification of the claim and
• whether a refusal to allow the applicant to bring proceedings would leave them without recourse against anyone else

Question 15

What is an order under IPFDA 1975 made out of?

Answer 15

It is made out the ‘net estate’ which includes:

• the normal succession estate
• any property in respect of which the deceased held a general power of appointment which has not been exercised
• any property which the deceased nominated by statutory nomination or gave by donatio mortis causa (minus any IHT paid by the donee)
• the deceased’s severable share of a joint tenancy
• any other property disposed of during the deceased’s life but which is made available by the court’s anti-avoidance powers

Question 16

What are the grounds for making an IPFDA claim?

Answer 16

• deceased’s will did not make reasonable financial provision for the applicant and/or
• distribution of the deceased’s estate under the intestacy rules fails to make reasonable financial provision for the applicant

Question 17

What will the courts consider when assessing whether the grounds for an IPFDA claim has been made out?

Answer 17

The courts will consider the competing interests of the applicant and intended beneficiary as well as the original wishes of the testator

Question 18

What orders could a court make under the IPFDA?

Answer 18

• periodical payments
• lump sum
• transfer of property
• settlement of property
• acquisition of property for transfer
• variation of marriage settlements
• variation of civil partnership settlements
• variation of the trusts on which the deceased’s estate is

Question 19

What is the two stage test for IPFDA claims?

Answer 19

Court to considers:

1) did the deceased fail to make reasonable financial provision for the applicant?

2) if so, what award should the court make?

Question 20

What is the financial provision standard if the applicant is a surviving spouse/civil partner?

Answer 20

Such financial provision as it would be reasonable in all the circumstances for a husband or wife or civil partner to receive whether or not that provision is required for his or her maintenance

Question 21

What is the maintenance standard for everyone applicant other than spouse/civil partner?

Answer 21

Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his/her maintenance

Question 22

When does the court have discretion to apply the surviving spouse financial provision standard even though the applicant is not a surviving spouse?

Answer 22

Where the following three conditions are satisfied:

• applicant is former spouse or civil partner of the deceased who has not remarried/entered a civil partnership or a spouse who is judicially separated from the deceased;
• divorce, dissolution, nullity or judicial separation occurred within 12 months of the death
• no order for financial provision has been made or refused in the ancillary proceedings

Question 23

What will the maintenance standard equate to in monetary terms?

Answer 23

What would be reasonable for an applicant to live on (without either living in luxury or poverty)

Not the same thing as the actual standard of living that the claimant has enjoyed during the deceased’s lifetime

Question 24

What weight are the s 3 guidelines to be given in assessing an applicant’s claim?

Answer 24

They are to be given equal weight

Question 25

What guidelines are common to all applicants?

Answer 25

a) the applicant’s financial resources and financial needs

b) financial resources and financial needs of any applicants (including financial resources and needs for the near future)

c) the financial resources and financial needs of any beneficiary of the estate

d) any obligations and responsibilities which the deceased had towards any applicants or beneficiaries

e) the size and nature of the net estate of the deceased

f) any physical or mental disability of any applicant or beneficiary

g) any other matter the court considers relevant in the circumstances (including the conduct of the applicant or any other person)

Question 26

What specific additional requirements will the court consider in relation to spouses/civil partners?

Answer 26

• applicant’s age and duration of marriage/civil partnership
• the contribution made by the applicant to the welfare of the family of the deceased including any contribution made by looking after the home or caring for the family
• the provision which the applicant might reasonably have expected to receive in divorce/dissolution proceedings if the couple had ended their relationship at date of death

Question 27

What specific additional requirements will the court consider in relation to cohabitees?

Answer 27

• age of the applicant and the length of the period of cohabitation
• the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family

Question 28

What specific additional requirements will the court consider in relation to a child of the deceased/treated as child of the deceased?

Answer 28

Court may consider the manner in which the applicant was or expected to be educated or trained. Considering:

• whether and on what basis the deceased maintained the applicant for what time they did so and the extent of their contribution
• whether and if so to what extent the deceased had assumed responsibility for the applicant’s maintenance
• whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the applicant was not their child
• the liability of any other person to maintain the applicant

Question 29

What specific additional requirements will the court consider in relation to applicant’s that were wholly or partly maintained by the deceased?

Answer 29

• the length of time for which and the basis on which the deceased maintained the applicant and the extent of the contribution made by way of maintenance
• whether and if so to what extent the deceased assumed responsibility for the maintenance of the applicant

Question 30

What will the court have to ask in determining what award to make?

Answer 30

• quantum - how much should the applicant receive?
• form of award - what form should the award take?

Question 31

What the court consider in determining quantum for a successful claim?

Answer 31

The applicant’s assets and liabilities (including any future assets or liabilities)

Question 32

Why might an interest under a discretionary trust not constitute reasonable financial provision?

Answer 32

As it does not guarantee the applicant anything

Question 33

When might it be more appropriate for the court to award the applicant a life interest rather than a capital interest?

Answer 33

• where the applicant simply wants to continue to live in the family home which was owned by the deceased
• the deceased may have children from another relationship, to whom the applicant would be unlikely to leave the property upon their own death