IPFDA 1975 claims Flashcards
Do close relatives have the legal right to inherit any fixed proportion of the estate?
No - Close relatives have no legal right to inherit any fixed proportion of the estate, but may make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975 (‘IPFDA 1975’) to vary the content of a will or an intestacy after the deceased has died.
In order to make an application under the IPFDA 1975, an applicant must do what three things?
(a) Be within the jurisdiction of the IPFDA 1975.
(b) Demonstrate that they fall within a recognised category of eligible applicants.
(c) Make their claim within the prescribed time limit.
Simple way to remember the requirements to make a claim?
Jurisdiction
Category
Time limit - 6 months from the date of the grant.
The IPFDA 1975 only applies where the deceased died in which jurisdiction?
Domiciled in England and Wales.
*Domicile is different from nationality or residence.
It is only possible to have one domicile at a time
Domicile is different from nationality or residence. It is only possible to have one domicile at a time.
What are the different types of domicile?
• Domicile of origin: This is determined at birth and is based on the father’s domicile if the parents were married or mother’s if they were not.
• Domicile of dependency: If the relevant parent changes domicile, the domicile of children under 16 changes too.
• Domicile of choice: An individual can choose to sever all ties with their domicile of origin (e.g. by emigrating with the intention of never returning to the UK). The intention to change domicile must be permanent.
What are the recognised categories of eligible applicants?
• A spouse / civil partner of the deceased.
• 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 prior to their death.
• A child of the deceased. (N.B. Adopted children are recognised as the children of the adopters for all legal purposes. Adoption severs legal ties with the birth family.)
• Any person who was treated by the deceased as a child of their family. (This might include a step-child for example).
• Any other person who was maintained (wholly or partly) by the deceased immediately before their death.
What does maintenance mean in ‘any other person who was maintained (wholly or partly) by the deceased’?
‘maintenance’ refers to financial maintenance of the applicant. It is not sufficient that the deceased was providing the applicant with emotional or other forms of support.
An application under the IPFDA 1975 cannot be made more than how many months after the date the grant was made?
six months
Whose onus is it on for the applicant to show special reasons for having exceeded the time limit?
the onus is on the applicant to show special reasons for having exceeded the time limit.
What should the court take into account when deciding whether to extend the time limit for making a claim?
• 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.
What did Re Dennis say?
Re Dennis added that the applicant must demonstrate that they have an arguable case fit to go to trial.
Which court should an applicant be brought in?
An application can be lodged in the High Court or County Court.
Where using the High Court, it would be more appropriate to use the Family Division when an application is made by who?
a spouse, civil partner or cohabitee and there are no complex issues of interpretation.
In other cases, what division is more appropriate to use?
In other cases it is generally more appropriate to use the Chancery Division.
Which properties do the IPFDA 1975 apply to?
• 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)(ss 8(1) and (2) IPFDA 1975).
• The deceased’s severable share of a joint tenancy. This is only part of the net estate if so ordered by the court under s 9 IPFDA 1975.
• Any other property disposed of during the deceased’s life but which is made available by the court’s anti-avoidance powers under ss 10 and 11 IPFDA 1975.
What are the grounds for making a claim under the IPFDA 1975?
• that 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.
What is the two-stage test for IPFDA 1975 claims?
(a) Did the deceased fail to make reasonable financial provision for the applicant?
(b) If so, what award should the court make?
What is the surviving spouse standard?
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.
What is the maintenance standard?
‘Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his/her maintenance.’
Broadly, the courts consider the maintenance standard to require an assessment of what it would be reasonable for an applicant to live on (without either living in luxury or poverty). This is not the same thing as the actual standard of living that the claimant has enjoyed during the deceased’s lifetime (although this will be a relevant consideration).
Broadly, the courts consider the maintenance standard to require an assessment of what it would be reasonable for an applicant to live on (without either living in luxury or poverty). This is not the same thing as the actual standard of living that the claimant has enjoyed during the deceased’s lifetime (although this will be a relevant consideration).
What are the three conditions that must be satisfied before the court extends the surviving spouse standard?
(a) An applicant is a 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;
(b) Divorce, dissolution, nullity or judicial separation occurred within 12 months of the death; and
(c) No order for financial provision has been made or refused in the ancillary proceedings.
what are the specific guidelines for relevant for spouses?
the court must also consider the following:
1. the applicant’s age and duration of the marriage/civil partnership
2. the contribution made by the applicant to the welfare of the family of the deceased, e.g looking after the home/caring for the family.
3. the provision which the applicant might reasonably have expected to receive in divorce proceedings if the couple had ended their relationship at the date of death.
The first two criteria also apply to former spouses.
what are the specific guidelines for cohabitees?
the court must also consider the following:
1. the applicant’s age and duration of the cohabitation.
2. the contribution made by the applicant to the welfare of the family of the deceased, e.g looking after the home/caring for the family.
what are the specific guidelines for a child of the deceased?
the court must consider:
1. the manner in which the applicant was or might expect to be educated or trained.
2. whether and to what extent the deceased maintained the applicant.
3. whether and to what extend the deceased had assumed responsibility for the applicants maintenance.
4. whether the deceased maintained the applicant without knowing they are their child.
5. the liability fo any other person to maintain the applicant.
If an applicant does not fall within one of the previous categories, but was maintained (wholly or partly) by the deceased, the court must take into account what?
(a) 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.
(b) Whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant.
