WE 2 - IPFDA

Question 1

What categories of deceased can the Inheritance (Provision for Family and Dependants) Act 1975 apply to?

Answer 1

Only those domiciled in England and Wales.

Question 2

What categories of beneficiaries can the Inheritance (Provision for Family and Dependants) Act 1975 apply to?

Answer 2

SPOUSE
- spouse
- former spouse who has not remarried
- a person who cohabited with the deceased for 2 years prior to death as if they were a spouse for
CHILDREN
- child of the deceased
- Any person who is treated by the deceased as a child (step-children)
MISTRESSES
- Any person who was maintained (wholly or partly) by the deceased immediately before their death. (‘maintained’ must be substantial and means cash, not just emotional support)

Question 3

When must an application under Inheritance (Provision for Family and Dependants) Act 1975 be made?

Answer 3

no more than 6 months after the date the grant of representation was made.

Question 4

When can the time limits for an application under Inheritance (Provision for Family and Dependants) Act be extended?

Answer 4

The Court has discretion to extend but there must be special reasons. The court should consider:

• 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,
• whether refusal would leave the applicant without recourse against anyone else.
• applicant must have an arguable case fit to go to trial.

Question 5

Where must an application under Inheritance (Provision for Family and Dependants) Act be made?

Answer 5

• High Court or County Court
• Where applying to the high court, Family division for family member, Chancery if complex

Question 6

What property does Inheritance (Provision for Family and Dependants) Act 1975 relate to?

Answer 6

• The succession estate
• Any property the deceased has a general power of appointment over
• Any property covered by statutory nomination or donatio mortis causa (less IHT paid by donee)
• Joint tenancy
• and property disposed of covered by anti-avoidance provisions.

Question 7

What are the grounds for a Inheritance (Provision for Family and Dependants) Act 1975 application?

Answer 7

• the deceased’s will did not make reasonable financial provision;

AND/OR

• that the distribution of the estate under intestacy rules fails to make reasonable financial provision

Question 8

When is an order under Inheritance (Provision for Family and Dependants) Act deemed to take effect?

Answer 8

from the date of death - therefore, read back for tax purposes.

Question 9

What is the standard of financial provision for the surviving spouse?

Answer 9

Reasonable (regardless of maintainance)

Question 10

What is the standard of financial provision for ANYONE OTHER than the surviving spouse?

Answer 10

“Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive FOR HIS MAINTAINANCE.”

Question 11

When can the surviving spouse standard in Inheritance (Provision for Family and Dependants) Act 1975 be expanded?

Answer 11

• court discretion
• Former spouse who has not remarried,
  AND
• Divorce etc. occurred within 12 months of the death,
  AND
• No order for financial provision have been made.

Question 12

What are the common guidelines the court must consider when considering the level of maintenance required.

Answer 12

The court will have regard to financial resources and needs of
- applicant
- other applicants
- beneficiaries
- obligations of the deceased
- disability of the applicant / beneficiaries
- any other matter the court considers relevant.

Question 13

What are the additional guidelines the court must consider when considering the level of maintenance required for the spouse.

Answer 13

• age
• duration of marriage
• contribution made
• what the applicant could have expected in a divorce (but only a consideration - doesn’t mean they will get this).

Question 14

What are the additional guidelines the court must consider when considering the level of maintenance required for cohabities?

Answer 14

• the age and length of cohabitation
• the contribution made by the cohabitant

Question 15

What are the additional guidelines the court must consider when considering the level of maintenance required for children?

Answer 15

• the manner in which the child was (or might expect to be) educated

If not a child but treated as one:
- how the deceased previously maintained the child,
- assumed responsibility
- whether the deceased knew the applicant was not their child
- the liability of any other person to maintain the applicant

Question 16

What are the additional guidelines the court must consider when considering the level of maintenance required for applicants who aren’t children or spouses?

Answer 16

• the length of time and extent to which the deceased maintained the applicant
• whether the deceased assumed responsibility for the maintenance

Maintainance required substantial contribution towards the reasonable needs.

Question 17

What are the additional guidelines the court must consider when considering the level of maintenance required for applicants who aren’t children or spouses?

Answer 17

• the length of time and extent to which the deceased maintained the applicant
• whether the deceased assumed responsibility for the maintenance

Maintainance required substantial contribution towards the reasonable needs.

Question 18

What is the exam wording?

Answer 18

• XXX would be entitled to bring a claim under the Inheritance (Provision for Family and Dependants) Act as [reason].
• the grounds of claim would be on the ground that she had not been reasonably provided for (for her maintenance - not wife).
• It is not possible to say how successful the claim will be but the court will take into account [sums received under will vs her needs].
• The best way to avoid litigation would be to make a settlement offer.
• X can enter into a deed of variation to redirect some of her inheritance to XX.
• This would have no IHT impact for x.