Wills 21 Flashcards
Can testators making a will dispose of their estate as they see fit?
Yes, as they have ‘freedom of testation’. Note, this is subject to a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’), as amended
Who does the Inheritance (Provision for Family and Dependants) Act 1975, as amended apply to?
- Under the Act, an application for family provision claim may be made to the court to set aside the terms of a will (or vary an intestacy) of a person who died domiciled in England and Wales on the grounds that reasonable financial provision has not been made for the applicant. * In some circumstances a family provision claim may be made against a person who was not domiciled in England and Wales if the deceased left property and family members or dependants there.
When must an application under the Inheritance (Provision for Family and Dependants) Act 1975 be made?
Within six months from the issue of the grant of representation to the PRs, or later with leave of the court.
How can PRs protect themselves from any personal liability arising under any late permitted claim under the Inheritance (Provision for Family and Dependants) Act 1975?
By waiting six months from the date of the grant before distributing the estate to beneficiaries.
Who may apply to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
- The surviving spouse or civil partner* A former spouse or civil partner who has not remarried nor formed a civil partnership. * A child of the deceased or a person treated as a child of the family of the deceased (such as a step-child). * A person who was being maintained, wholly or partly, by the deceased before the death. The deceased needs to have been making a substantial contribution towards the reasonable needs of the claimant. * A person who was living with the deceased during the whole of the two-year period immediately before the death as the spouse, civil partner, or same sex partner of the deceased.
When will a former spouse/civil partner be barred from making a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
If they had a ‘clean break’ divorce from the deceased.
When will children be unlikely to be successful in a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
Adult children are unlikely to be successful in a claim if able-bodied and in employment.
How is it determined whether a will has made ‘reasonable financial provision’?
Two-part test: * Have the will or intestacy rules failed to make reasonable financial provision for the applicant? * If so, what would be such provision?Note, the standard for spouses and all other applicants are different.
What is the test for ‘reasonable financial provision’ for a spouse?
The standard is such financial provision as would be reasonable in all the circumstances, whether or not required for maintenance. * The court should consider what would be awarded in a divorce. * The court has discretion to apply the surviving spouse standard to former spouses if the death occurs within 12 months of the decree absolute and no final order has been made in those divorce proceedings.
What is the test for ‘reasonable financial provision’ for an applicant who is not a spouse?
The standard is such provision required for their maintenance such that they can live decently and comfortably according to their situation. * The test is objective* Note, evidence of the deceased’s reasons for not providing in their will for an applicant is admissible. The reasons could be set out in the will itself or in an accompanying private document.
When might the court apply the standard of reasonable financial provision applicable to a spouse to a former spouse?
The court has discretion to apply the surviving spouse standard to former spouses if:* the death occurs within 12 months of the decree absolute and * no final order has been made in those divorce proceedings.
What are the 5 general guidelines a court must consider under the Inheritance (Provision for Family and Dependants) Act 1975?
- Financial resources and needs of the applicant, any other applicant, and any beneficiary (now or in the future)* Any moral obligation of the deceased to any applicant or beneficiary* Size and nature of the net estate of the deceased* Physical or mental disability of any applicant or beneficiary and * Any other relevant matter, including the conduct of any person.
What are the 3 guidelines specific to a surviving/former spouse must a court consider in addition to the general guidelines under the Inheritance (Provision for Family and Dependants) Act 1975?
- Their age and the duration of the marriage* Their contribution to the welfare of the deceased’s family and * The provision which might have reasonably been expected on divorce at date of death (this is only a starting point). This must be considered for a survivng spouse but may be considered for a former spouse at the discretion of the court.
What are the 3 guidelines specific to a cohabitant must a court consider in addition to the general guidelines under the Inheritance (Provision for Family and Dependants) Act 1975?
- Their age, * How long they lived as spouses, and * Their contribution to the welfare of the deceased’s family.
What guideline specific to a child must a court consider in addition to the general guidelines under the Inheritance (Provision for Family and Dependants) Act 1975?
The manner in which they were, or might be expected to be, educated.
