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IPFDA 1975 Flashcards

1
Q

What is the purpose of the IPFDA?

A

To vary the will or intestacy where they fail to make provision for an eligible claimant

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2
Q

What are the 3 requirements to make a claim under IPFDA?

A
  1. you must be an eligible claimant
  2. the claim must be made within 6 months of issue of the grant
  3. must fall within the correct jurisdiction
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3
Q

General position of jurisdiction for IPFDA

A

The IPFDA only applies where the deceased died domiciled in England and Wales

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4
Q

Is a person’s domicile fixed throughout their life or can it vary?

A

It can vary depending on their circumstances

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5
Q

Explain domicile of origin

A

This is determined at birth and is based on the father’s domicile if they were married, or the mother’s if they were not

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6
Q

Explain domicile of dependency

A

If the relevant parent change their domicile, this also changes for children who are under 16

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7
Q

Explain domicile of choice

A

An individual can choose to sever all ties with their domicile of origin - the intention to change domicile must be intentional

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8
Q

Who are eligible claimants under IPFDA?

A
  • spouse or CP
  • former spouse or CP who has not remarried
  • a cohabitee of more than 2 years prior to D’s death
  • a child of D
  • any person who was treated as a child of D
  • a person who was wholly or partially maintained by D immediately before their death
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9
Q

What is meant by ‘a person who was maintained by D’?

A

This refers to financial maintenance - it does not include any emotional or other forms of support

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10
Q

S1 (3) IPDFA 1975

A

An applicant who falls within [a required] category is treated as being maintained by the deceased only if the deceased was 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

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11
Q

What is the general time limit rule for an IPDFA claim?

A

6 months from the issue of the grant

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12
Q

Can an IPFDA claim be made prior to the issue of a grant?

A

Yes this is possible

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13
Q

Where can you find information on the issue of a grant?

A

Online - government probate records

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14
Q

Does the court have discretion to extend the time limit for an IPDFA claim?

A

Yes - but the onus is on the applicant to show special reasons for having exceeded the time limit

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15
Q

What factors should the court take into account when considering extension of time under IPFDA?

A
  • the circumstances surrounding the delay
  • whether negotiations were commenced within the time limit
  • if the estate had already been distributed before notification of a claim
  • whether a refusal to allow the applicant to bring proceedings would leave them without recourse against anyone else
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16
Q

Which courts can an IPFDA claim be lodged in?

A

High court or county court

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17
Q

When lodging an application in the High court, when is it appropriate to use the family division for an IPFDA claim?

A

Lodge applications within the family division when an application is made by a spouse, CP, or cohabitee and there are no complex issues of interpretation

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18
Q

What property falls within the scope of an IPFDA claim?

A

Any order under an IPFDA claim is made out of the net estate, including:

  • normal succession estate
  • any property D held a general power of appointment which has not been exercised
  • property which D nominated by statutory nomination or gave by DMC
  • D’s severable share of a JT
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19
Q

What property may the court order falls under S9 IPFDA?

A

Any other property disposed of during D’s lifetime but which is made available by the court’s anti-avoidance powers under ss10 and 11 IPFDA - note this is at the court’s discretion

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20
Q

What are the grounds for making an IPFDA claim?

A

D’s will (or the distribution of the estate under the intestacy rules) did not make reasonable financial provisions for the applicant

21
Q

What is the common difficulty in an IPFDA claim?

A

The difficulty is often determining what ‘reasonable’ provision is - Ilott v Blue Cross

22
Q

What orders can a court make under s2(1) IPFDA?

A
  • periodical payments
  • lump sum
  • transfer of property
  • settlement of property
  • acquisition of property for transfer
  • variation of marriage or CP settlements
  • variation of the trusts on which D’s estate is held
23
Q

When is an order under IPFDA deemed effective?

A

An order from the court is deemed effective from the date of D’s death - orders are therefore ‘read back’ for tax purposes and treated as if D had made the dispositions at death

24
Q

Assessing a claim under IPFDA - explain the two-stage test

A

A court will consider:

a. did D fail to make reasonable financial provisions for the applicant?

b. if so, what should the court award?

25
Under what section of IPFDA can the court find guidelines for an objective assessment?
S3 IPFDA sets out the general guidelines for the court
26
Reasonable financial provision - what impacts the court's decision?
The court will consider whether D has made reasonable financial provision for the applicant using an objective test based on the statutory criteria - the court will not consider if D was morally wrong in their decision
27
S1(2) IPFDA and the two standards
S1(2) sets out two sets of standards for reasonable financial provision - one that applies to spouses and CPs, and one that applies to all other applicants
28
S3 IPFDA - guidance for the court
S3 sets out guidance for the court - different factors apply to different categories of claimants
29
What are the two standards of financial provision?
1. surviving spouse standard 2. maintenance standard
30
What is the surviving spouse standard?
Such financial provision as it would be reasonable in all circumstances for a husband/wife/CP to receive whether or not that provision is required for their maintenance
31
What is the maintenance standard?
Such financial provision as it would be reasonable in all circumstances of the case for the applicant to receive for his/her maintenance
32
When can the court apply the surviving spouse standard (s14)?
The court has the discretion to apply the surviving spouse standard when the following 3 conditions are satisfied: a. an applicant is a former spouse or CP that has not remarried b. divorce (or other formal separations) occurred within 12 months of the death c. no order for financial provision has been made or refused
33
What is the key difference between the surviving spouse and maintenance standard?
The surviving spouse standard requires the court to what would be reasonable for the applicant to receive, without any requirement to consider what is needed for maintenance
34
What will the court take into consideration when looking at the maintenance standard?
The court is required to consider assessing what would be reasonable for an applicant to live off (without either living in luxury or poverty)
35
Who to the section 3 IPFDA guidelines apply to?
All applicants - and the court must give all factors equal weight
36
Are the court required to apply the section 3 IPFDA guidelines?
Yes the court must apply them to all applicants
37
What are the section 3 IPFDA guidelines?
a. applicants financial resources and financial need b. the financial resources and financial need of any other applicant or beneficiary c. any obligations and responsibilities D had towards any applicant or beneficiary d. size and nature of the net estate e. any physical / mental disability of the applicant or beneficiary f. any relevant circumstances (conduct of the applicant or others)
38
Do the court need to consider the foreseeable future when assessing financial need under IPFDA?
Yes the court must take into account any resources and needs that the applicant is likely to have in the foreseeable future
39
Is there specific guidance for the court when considering the financial need of spouses and CPs?
Yes - there is specific guidance for the court when considering financial need of spouses and CPs under s3(2)
40
What is the specific guidance that the court should follow for spouses and CPs under IPFDA 3(2)?
- age and duration of the marriage - contributions made by the applicant to the welfare of the family - the provision with A might have reasonably expected in divorce proceedings as if the couple had ended the relationship on the date of death
41
Is the court required to apply the surviving spouse standard under s14 IPFDA?
No this remains at the court's discretion
42
What specific guidance should the court consider for cohabits under IPFDA?
- the age of the applicant and length of cohabitation - the contributions made by the applicant to the welfare of the family
43
Under s3(3) IPFDA what specific guidance should the court consider for children of the deceased?
- whether and on what basis D maintained A and the extent - the extent that D had assumed responsibility for As maintenance - As education or training (or what might be expected) - did D assume As responsibility even where it was known they were not Ds child - liability of any other person to maintain A
44
Specific guidance for other applicants under s3 IPFDA that the court should consider?
For other applicants, the court must take into account - the length of time that D maintained A and the extent - extent to which D assumed responsibility for maintaining A
45
Once it is established that D failed to make reasonable financial provision, what are the steps the court needs to consider to make an award?
1. quantum - how much should A receive? 2. form of award - how should A receive it?
46
What do the court need to assess the value and nature of an award in an IPFDA claim?
They need a list of As assets and liabilities - this is then used to assess the s3 factors to determine if A has a particular need
47
Comparison of IPFDA award and divorce award for spouses and CPs?
Although the court is required to consider what may have happened in divorce proceedings, this does not necessarily mean A will receive the same award
48
IPFDA claims where the applicant is the object of a trust
An applicant may be the object of a trust under the will or intestacy but argue that it is not a reasonable financial provision

Wills and Administration of Estates (9 decks)

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