Variation Of The Will/ Intestacy Provisions

Question 1

Inheritance (Provision for Family and Dependants) Act 1975

Answer 1

1. A claim made under this act can vary the terms of a will or the application of the intestacy rules
2. Basis for a claim is that the Will/intestacy rules does not make reasonable financial provision for the applicant
3. Any statements made by the deceased as to why they made no provision for the person should be preserved as they may be relevant
4. Applications should be lodged within six months of the grant of representation

Question 2

Categories of applicant

Answer 2

The onus is on the applicant to show that they fall within one of the categories set out in S1(1)

1. Spouse/civil partner of the deceased - marriage must’ve been in existence at the date of the deceased death
2. Former spouse/civil partner who has not remarried
3. Cohabitant – someone who has lived in the same household as the deceased as husband or wife throughout the two-year period prior to the deceased death
4. Child of the deceased but they are unlikely to be successful if they are able-bodied and in employment
5. Person who has been treated as a child of the family usually a step child of the deceased
6. Dependent – someone who does not fall into any of the above categories and immediately before the death of the deceased was being maintained by the deceased

Question 3

Dependent

Answer 3

Defined as a person who is maintenance the deceased was making a substantial contribution

Question 4

Reasonable financial provision

Answer 4

The act sets out a two stage process:

1. How’s the well/intestacy rules failed to make reasonable financial provision for the applicant
2. If so the court will have to consider what will amount to reasonable financial provision

Question 5

Surviving spouse standard

Answer 5

What financial provision should be made that is reasonable in all the circumstances whether or not it is required for maintenance. The court is directed to have a guard to the provision which would have been awarded in divorce proceedings.

Question 6

The ordinary standard

Answer 6

1. Applies to all other categories of applicant

2. Such provision as will be reasonable in all the circumstances for the applicant to receive for his/her maintenance

Question 7

Guidelines which the court must take into account (S3(1))

Answer 7

S3(1):

1. Financial resources and needs of the applicant, other applicants and any other beneficiary, now or in the forseeable future
2. Moral obligations of the deceased towards any applicant/beneficiary
3. Size and nature of the estate
4. Physical or mental disability of the applicant/beneficiary
5. Any other relevant matter – including conduct of the applicant or other parties

Question 8

Other guidelines relevant to particular categories of applicant

Answer 8

1. Where the applicant is a surviving spouse/civil partner:
   a) age of the applicant and duration of marriage
   b) The applicants contribution to the welfare of the deceased family
   c) The provision The applicant could’ve expected to receive on a divorce/dissolution of civil partnership
2. Where the applicant is a former spouse provisions made at the divorce must be considered
3. Where the applicant is a cohabitant
   a) The age of the applicant and how long they have resided in the same house as the defendant
   b) their contribution to the well-being of the family
4. Where the applicant is a child education or training requirements are considered

Question 9

Types of order the court can make

Answer 9

1. Lump sum payment (Usual)
2. Periodical payments
3. Transfer of specific property

Order will be made from the deceased net estate this includes the deceased share of joint property passing by survivorship

Question 10

Effect of the order

Answer 10

1. The court will declare how the burden of order is to be borne
2. Which beneficiary is to lose part of all of the property they would have taken
3. For inheritance tax purposes the altered disposition of the estate is treated as taking effect from death

Question 11

Protecting the PRs

Answer 11

1. Should be advised not to distribute the estate until six months after the issue of grant
2. Should not distribute once they have notice of a possible claim
3. If the PR is to distribute within the six month period and an application subsequently brings a successful claim the PRs will be personally responsible to satisfy the claim if insufficient assets are left in the estate