Wills 6 - Family provisions and post-death variations Flashcards
Time limit
Six months from date of grant of representation.
Online or postal search of probate records to see grant.
Only permit extension if good reason for delay
Court considers -
merits, how prompt, estate been distributed, PRs or beneficiaries had notice within time limit, and if another remedy available.
Inheritance (Provisions for Family and Dependants) Act 1975
Can make claim to court that they should have inherited.
Categories;
-Spouse or civil partner
-Former spouse or civil partner who has not remarried *court may make order on dissolution of marriage against this)
-A child of the deceased
-Any person treated by the deceased as a child of the family in relation to any civil partnership or marriage of the deceased (acted as parent)
If in adult employment and likely to have earning capacity for foreseeable future, unlikely they will succeed without special circumstances;
-moral obligation
-adult child having disability
-adult child working for deceased for many years for a low wage
-child makes sacrifices to care for deceased.
-Any person who was immediately before death being maintaned either in whole or part. Substantial contributions towards reasonable needs of that person.
Temporary break before does not defeat claim.
Must not be part of a commercial arrangement
-Person who during period of two years before was living at same household and as husband wife or civil partner
Household means one unit, public and private acknowledgement of mutual protection and support that binds them together.
Lived together as if they were husband/wife or civil partners;
Couple must be openly acknowledged (no need for sexual relations)
Two years
Temporary break wont defeat claim. Some degree of permanence and commitment.
Grounds
First determine reasonable financial provision for applicant.
Objective test.
On applicant to prove.
-Surviving spouse standard; such financial provisions as reasonable in circumstances. Might have expected on divorce.
-Ordinary standard; Such financial provisions as it would be reasonable in all the circumstances for the applicant to receive his maintenance
‘Maintenance’ discharge cost of living such as the standard applicable to them. People who can afford by themselves not suitable.
Guidelines in act;
-financial resources and needs of applicant, other applicants and beneficiaries of estate now and in foreseeable future.
-deceased’s obligations towards any applicant or beneficiary
-size and nature of estate
-physical or mental disability of any applicant or beneficiary
-anything else which may be relevant such as conduct of applicant.
Deceased may leave wishes in will. Excluding applicant from will. Court has discretion as to weight attached.
If they killed testator can still bring claim under this
Must be some sort of mortal claim or special circumstance, only for living expenses (Ilott v Blue Cross Properties and Others 2017).
Orders
Court can make orders against net estate for periodical payments, lump sum payments or transfer of specific property.
Net can include joint property passing by survivorship.
Court will decide how order bourne. May affect IHT if affects amount on spouse exemption
Anti-avoidance - Avoid gifts made less than six years before death with intention of defeating a claim under the Act.
PRs - should not distribute estate until six months. If permits application out of time PRs will not be liable personally
Post-death variations
Beneficaires may alter
-unfairly excluded
-threatening to bring claim for family provisions, a voluntary variation could help defeat claim
-will or intestacy may not be tax-efficient
Types of arrangement;
-Lifetime gift by beneficiary of inheritance under a will or intestacy
-Post-death disclaimers - pass as though beneficiary has pre-deceased. Only appropriate if property passes to correct person.
Cannot disclaim part or once accepted.
-Post-death variations;
Can direct where benefit goes. Rewrite will or intestacy. Can be used in joint property passing by survivorship.
Under Variation of Trusts Act 1958 - court has power to consent for infants and people who lack capacity.
IHT considerations
Variations read back into will. As if testator gave legacy directly to new beneficiary.
Conditions for this;
-in writing and signed by original beneficiary
-within two years of death
-not made for consideration in money or money’s worth
Must state s142 IHTA 1984 is to apply.
CGT considerations
Disposal includes sale and lifetime gifts of assets but not transfers on death
Read back so no disposal by original beneficiary.
Similar conditions to IHT.
