Unit 6 Flashcards
What is the purpose of Inheritance (Provision for Family Dependents) Act 1975?
Purpose of act = Allows certain categories of people who have been left out of the will, or are not inheriting on an intestacy, to apply to the court for a benefit from the estate following the testator’s death.
- May also be used by someone who has received some benefit under the will or intestacy but is dissatisfied with the amount of inheritance.
- Act only applies where the deceased died domiciled in England and Wales.
I.e., If deceased died in Scotland or N.I, they would be unable to make a claim.
What categories of applicant can make a claim under the provisions?
1) Spouse / civil partner of deceased
2) Former spouse / civil partner who has not remarried
3) Child of deceased (whatever the child’s age)
4) Any person treated by the deceased as a child of the family
5) Any person, who, immediately before death of the deceased was being maintained by the deceased either wholly or in part
6) Any person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living in the same household as husband / wife/ civil partner (cohabitants):
Requirements of 2) Former spouse or civil partner who has not remarried ..
(except where on the making of the final order of divorce/dissolution or nullity, the court made an order barring the former spouse or civil partner from making a claim).
3) A child of the deceased
- Adopted children regarded as the children of their adopted parents. Note (c) does not include step-children although they may come under category (d).
- Applications by infant children are uncontroversial.
- Applications by adult children are more difficult to succeed – if the adult child is in employment and likely to have earning capacity for the foreseeable future, it is unlikely that their application will succeed without some special circumstance such as:
- A moral obligation owed by the deceased;
- Adult child having a disability;
- Adult child working for the deceased for many years for a low wage; or
- Child making sacrifices to care for deceased.
4) Any person treated by the deceased as a child of the family …
- Question of fact.
- Covers people who are not the deceased’s legal children but where the deceased acted as a parent towards them.
- Step children likely to succeed where they can show the deceased acted as a parent towards them.
5) Any person who was being maintained immediately before the death of the deceased
- Someone is ‘maintained’ 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 – i.e., cannot be a housekeeper etc.
- Designed to catch anyone who is financially dependent on the deceased.
- Jelley v Lliffe – Providing rent-free accommodation was a substantial contribution to deceased’s reasonable needs and so amounted to maintenance.
- A temporary break in maintenance immediately prior to death does not prevent a claim.
- Courts will consider the extent to which the deceased assumed responsibility for the applicant.
- Has to be recurring in nature and not one-off payments
6) Cohabitants as husband / wife 2 years immediately before death ..
- Cohabitants who have not married can apply under this category if they satisfy the following 3 conditions:
- They must have been living in the same household as the deceased;
- As the husband, wife or civil partner; and
- This must have been for the whole of two years immediately preceding the deceased’s death.
“Same household” – means living together as one unit. Does not include where a couple is living under one roof but as two entities.
“As husband/wife/civil partner” – Must have lived together as though they were spouses or civil partners.
– Court asks would a reasonable person with normal perceptions regard them as living together as husband and wife?
– Absence of sexual relations does not preclude court from making this finding.
– Relationship as a couple must be openly acknowledged.
“Two years immediately before death” – Temporary separation, i.e., if the deceased was in hospital / care home for a period before death does not disqualify the cohabitant.
– Court considers whether a reasonable person would regard them as living as husband and wife.
– Has to be some degree of permanence and commitment.
Gully v Dix – Partner had lived elsewhere for 3 months temporarily due to drinking issue. They were still considered as living together ‘two years immediately before death’ as the relationship had not ended.
What are the time limits for making an application under the provisions?
- Application must be made within 6 months from the date of grant of representation.
- An application can also be made before the grant is issued.
- To discover whether a grant has already been issued, applicants can make an online or postal search of probate records.
- Can also make a ‘standing search’ which ensures that the applicant is notified of any grant which issues in the following 6 months.
- Court will only extend the time limit for a family provision where there is a good reason for delay. In extending, the court will consider:
- The merits of the applicant’s claim for provision,
- How promptly the applicant sought permission,
- Whether the estate has already been distributed,
- Whether the personal representatives or beneficiaries had notice within the time limit of a possible claim and
- Whether the applicant would have another remedy if permission were refused (e.g., suing their solicitor)
Re Salmon – Where solicitor forgot about the deadline, the judge expected the widow to obtain redress by suing her solicitor for negligence.
What is the only ground for making a claim under the Act?
Disposition of the estate by will or intestacy does not leave a reasonable financial provision for the applicant.
What is the test for “reasonable financial provision for applicant?
- Objective test.
- The burden is on the applicant to show that the test is satisfied.
2 standards:
1) Surviving spouse standard
2) Ordinary standard
What is the 1) surviving spouse standard?
a) Surviving spouse standard – allows a surviving spouse / civil partner financial provision “as is reasonable” in all the circumstances, whether or not that provision is required for their maintenance.
– Relevant partner = how much the spouse or civil partner might have expected on a divorce.
– Applies only to people legally married/civil partnership.
– I.e., what the spouse would have got on divorce rather than death.
– Maintenance is not relevant here.
Is maintenance relevant to the surviving spouse standard?
No.
What is the ordinary standard?
b) Ordinary Standard – Applies to all other categories of applicant (including cohabitants) and allows ‘such financial provision as would be reasonable in all the circumstances for the applicant to receive for their maintenance’.
– “Maintenance” = payments which enable the applicant to discharge the cost of their daily living at whatever standard of living is appropriate to them.
– I.e., recurring payments like rent, heating, food.
– A person who is able to pay for their living expenses out of their own resources will not obtain an award.
– Question for courts to ask: Can the applicant afford to maintain themselves? If no, application likely to be successful.
What are the S 3 guidelines in the Act?
The Act contains guidelines which assist the court in determining whether the will and/or intestacy makes reasonable financial provision for the applicant.
- Common guidelines should be considered for every applicant.
- Special guidelines should be taken into account for their particular category.
What are the common guidelines under S 3?
(i) The financial resources and needs of the applicant, other applicants and beneficiaries of the estate now and in the foreseeable future;
- Court balances the needs and resources of the applicant against the needs and resources of the beneficiaries and all those with a claim on the estate.
- Court considers earning capacity and their financial obligations and responsibilities.
- Court should consider the effect of any order on any state benefits the applicant receives.
(ii) The deceased’s obligations towards any applicant or beneficiary;
- Include legal obligations, like the duty of a parent to maintain their infant child and moral obligations.
(iii) The size and nature of the estate;
- It is easier to make a successful claim against a large estate.
- The smaller the estate, the more difficult it is to provide for all the beneficiaries and claimants and the courts do not want to encourage claims where the costs would swallow up a large portion of the estate.
Re Coventry – Where the estate was too small to satisfy everyone’s needs, the scales will tip towards the neediest.
(iv) The physical or mental disability of any applicant or beneficiary;
(v) Anything else which may be relevant, like the conduct of the applicant.
- Testator may leave written reasons for excluding the applicant from their will. The court has discretion as to how much weight to attach to the reasons.
- Illot v Blue Cross – The deceased’s wishes are relevant factors which fell to be considered alongside the other factors.
- “Conduct” – If a beneficiary under a will is criminally responsible for the testator’s death, their entitlement under the will is forfeit. However, they can still bring a claim for family provision.
- Another conduct point – where there was a prolonged period of estrangement between applicant and deceased.
