IPFDA 1975 Flashcards
what is the first requirement when applying under IPFDA?
The deceased must be domiciled in England and Wales
Domicile refers to the legal residence of the deceased at the time of their death.
Who can apply under the IPFDA?
- A spouse/civil partner
- A 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
- A child of the deceased
- Any person who was treated by the deceased as a child of their family
- Any other person who was financially maintained (wholly or partly) by the deceased immediately before their death
What is the time limit for making an application after the grant of representation?
Not more than six months after the date the grant of representation was made
What factors can the court consider to increase the time limit for applications?
- Circumstances surrounding the delay
- If negotiations were commenced within the limit
- If the estate had already been distributed
- If refusal would leave them without recourse against anyone else
The court has discretion to assess individual cases.
Which courts can handle applications related to the deceased’s estate?
High Court (Family division if not complex, spouse/CP/cohabitee, or Chancery) or County Court
What types of property does the IPDFA 1975 apply to?
- Normal succession estate
- Property where the deceased had a general power of appointment not yet exercised
- Property nominated by statutory nomination or given by DMC
- Deceased’s share of a severable joint tenancy, if ordered by the court
- Any other property disposed of during the deceased’s life but made available by the court’s anti-avoidance powers
What are the grounds for an IPDFA 1975 claim?
- The deceased’s will did not make reasonable financial provision for the applicant AND/OR
- The distribution of the deceased’s estate under the intestacy rules fails to make reasonable financial provision for the applicant.
What are the two questions to be asked in an IPFDA claim?
- Reasonable Financial Provision: This involves an objective assessment on statutory criteria, not a moral judgement.
- What award should the courts give?
What does the surviving spouse standard entail and who can it apply to?
Such provision as would be reasonable for a husband/wife/civil partner to receive, whether or not that provision is required. It can extend to a former spouse who has not remarried or a separated spouse if the divorce/separation occurred within 12 months, provided no order has been made or refused in the ancillary proceedings.
What is the maintenance standard in the context of IPDFA 1975 claims?
Such provision as it would be reasonable in the circumstances for this applicant to receive for their maintenance, which is not the same as the standard of living they are used to.
What must the court consider according to section 3 guidelines?
The court must consider:
1. The applicant’s financial resources and needs
2. Other applicants’ financial needs and resources
3. Beneficiaries’ needs and resources
4. Obligations and responsibilities of the deceased toward any applicants or beneficiaries
5. Size and nature of the net estate
6. Physical and mental disabilities of the applicant/any beneficiary
7. Any other matter the court considers relevant.
What extra factors are considered for spouses in IPDFA 1975 claims when assessing reasonableness?
- Applicant’s age and duration of marriage
- Contribution by applicant to the welfare of the family of the deceased, including domestic contribution
- The provision the applicant might reasonably have expected to receive in divorce/dissolution proceedings if the couple had ended their relationship at the date of death.
What extra factors are considered for cohabitees in IPDFA 1975 claims when assessing reasoanbleness?
The applicant’s age, length of cohabitation, and any contribution made when dealing with cohabitees.
What extra factors are considered for children in IPDFA 1975 claims when assessing reasonbableness?
- The manner in which the applicant was or expects to be educated or trained
- How the deceased maintained the child, for what time, and the extent of their contribution
- Whether and to what extent the deceased had assumed responsibility for the applicant’s maintenance
- Whether the deceased did so knowing the applicant was their child.
What extra factors are considered for other applicants who were maintained by the deceased in IPDFA 1975 claims when assessing reasonableness?
- Length of time and basis on which the deceased maintained the applicant and extent of contribution
- Whether the deceased assumed responsibility for maintenance.
When deciding how much to award, what should the court consider?
The court should consider the value and nature of the award, including obtaining a list of the applicant’s assets and liabilities, and assessing relevant section 3 factors to determine the applicant’s particular need.
What should the court consider when making an award to a spouse?
What relief would be available on divorce - The relief might not be on a clean break basis, and there is no presumption for it. It might be more appropriate to give a life interest.
Will an interest under a discretionary trust be reasonable?
An interest under a discretionary trust may not constitute reasonable financial provision as it does not guarantee the applicant anything.
What are possible orders the court can make?
- Possible orders include:
- 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 effect of any order made by the court?
Any order is deemed effective from the deceased’s death, so they are ‘read back’ for tax purposes.
