IPFDA 1975 Flashcards
What is the IPFDA 1975?
It is legislation which allows certain people to apply to the court to cary the content of a will or an intestacy after the deceased has died.
It gives the court power to make provision for an applicant if it feels that reasonable financial provision has not been made out of the deceased’s estate.
Who is eligible to make an application under the IPFDA?
an applicant must:
- be within the jurisdiction of the IPFDA (the testator died domiciled in England and Wales)
- Fall within an approved category
- Make their claim within the prescribed time limit
Categories of applicants under the IPFDA
- A spouse or civil partner of the deceased
- A former spouse or civil partner who has not remarried or formed a subsequent civil partnership
- A person who cohabitated with the deceased as if there were spouses/cps 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 (financially) (wholly or partly) by the deceased immediately before their death - must be substantial contribution towards the reasonable needs of that person
Time limits for IPFDA claims
Cannot be made more than six months after the date the grant of representation was made (but can be made before).
But can apply to the court to extend this. The court will consider:
- circumstances surrounding the delay
- whether negotiations were commenced within the time limit
- if the estate had already been distributed before notification of the claim
- whether a refusal to allow the applicant to bring proceedings would leave them without recourse against anyone else.
Property to which the IPFDA applies
Includes property in the net estate.
Includes property which passed outside of the will as well.
Grounds for making a claim under the IPFDA
- the deceased’s will did not make reasonable financial provision for the applicant; and/or
- that the distribution of the deceased’s estate under the intestacy rules fails to make reasonable financial provision for the applicant.
Courts will consider the competing interests of the applicant and intended beneficiary as well as the original wishes of the testator.
Order the court may make under IPFDA
The court has the power to make the following orders:
- 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 held
What is the tax effect of an IPFDA order?
The order is deemed to be effective from the deceased’s death.
Orders are therefore read back for tax purposes and treated as if the deceased had made the dispositions at death.
What questions will the court consider when making an IPFDA assessment?
- Did the deceased fail to make reasonable financial provision for the applicant?
- If so, what award should the court make?
What are the standards for reasonable financial provision?
Surviving spouse standard: financial provisions that would be reasonable whether or not that provision is required for his/her maintenance
Maintenance standard: financial provision that would be reasonable for his/her maintenance
To which categories does the surviving spouse standard apply (aside from spouse)?
Court has the discretion to apply the standard where the following three conditions are satisfied:
- An applicant is a formed 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; and
- No order for financial provision has been made or refused in the ancillary proceedings
What is maintenance?
There is no actual definition of maintenance.
The courts will consider the standard to require an assessment of what it would be reasonable for an applicant to live on (neither in poverty nor luxury).
This may be different than what the claimant enjoyed during the deceased’s lifetime.
Section 3 guidelines
These must be applied to all applicants and given equal weight.
Court will have regard to:
- applicant’s financial resources and needs
- financial resources and needs of any other applicants
- resources and needs of any other beneficiaries in the estate
- any obligations and responsibilities which the deceased had towards any applicants or beneficiaries
- size and nature of the net estate of the deceased
- any physical or mental disability of any applicant or beneficiary
- any other matter the court considers relevant in the circumstances
Specific guidelines: spouses
- applicant’s age and duration of the marriage or cp
- contribution by the applicant to the welfare of the family of the deceased including contribution by looking after the family home
- provision which the applicant might reasonably have expected to receive in divorce proceedings if the couple ended their relationship at the date of death (only applies to spouse standard)
Specific guidelines: cohabitees
- age of the applicant and length of the period of cohabitation
- 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
