IPFDA Claims

Question 1

Under what circumstances can a solicitor provide a copy of a former client’s will to another person?

Answer 1

The solicitor should not provide a copy of the will to anyone, until the personal representatives provide consent. Even if the will has already been read

• must have PRs consent - otherwise risk breach of duty of confidentiality

Question 2

What advice should be given to a client who is concerned about claims against their estate (from disgruntled individuals who do not receive under their will)?

Answer 2

The solicitor should advice the client to write a letter stating their decision (as to why they do not want someone to receive anything under the will), but make it clear that this is not a guarantee that no claim may be made against the estate

• claims against the estate are always a risk
• but a letter is helpful to evidence intention and indicate capacity

Question 3

What happens if there is a period of discontinued maintenance right before the deceased dies?

E.g., deceased maintained a woman until three months before D’s death

Answer 3

The court could disregard the last three months if there is a settled basis for maintenance (the woman had been maintained for a number of years until the last three months)

• where maintenance is discontinued because of circumstances beyond the control of the deceased, the court may disregard any such period

Question 4

What are eligibility criteria for IPFDA?

Answer 4

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

Question 5

Categories of applicant IPFDA

Answer 5

• Spouse / civil partner
• Former spouse / civil partner who has not remarried
• A person who has cohabited with deceased as if they were spouses for 2 years prior to death
• Child (adopted children are recognised as children of adopters)
• Any person treated by deceased as child (may include step-children)
• Any other person maintained by deceased immediately before death

Question 6

What is the time limit for making a claim?

Answer 6

Cannot be made more than 6 months after the date of grant of representation

Question 7

Grounds for making a claim

Answer 7

• Deceased’s will did not make reasonable financial provision for applicant; and/or
• Distribution of estate under intestacy rules fails to make reasonable financial provisions

Question 8

Two stage test

Answer 8

1. Did the deceased fail to make reasonable provision for the applicant?
2. If so, what award should the court make?

Both questions require an objective assessment of the facts

Question 9

What is the standard of financial provision for a spouse?

Answer 9

Surviving spouse standard - such financial provision as would be reasonable, whether or not that provision is required for his or her maintenance

• higher standard than maintenance standard

Question 10

What is the maintenance standard of financial provision?

Answer 10

Such financial provision as would be reasonable in all circumstances for his/her maintenance

Question 11

What are the common guidelines?

Answer 11

• applicant’s financial resources and needs
• financial resources and needs of any other applicants
• financial resources and needs of any beneficiary
• any obligations and responsibilities deceased had towards beneficiaries
• physical or mental disability