Wills 6: Family Provisions and Post Death Variations Flashcards
Where must the deceased be domiciled for the Inheritance (Provision for Family and Dependants) Act 1975 to apply?
England and Wales
6 categories of applicant under Inheritance (Provision for Family and Dependants) Act 1975
- Spouse/civP
- Former spouse/civP who hasn’t remarried (UNLESS divorce court bars claim)
- Child (inc adopted)
- Someone treated by deceased as a child of the family
- Someone who immediately before death was being maintained by deceased
- Someone who in 2y immediately before death was living in same household as spouse/civP
Categories of applicant under Inheritance (Provision for Family and Dependants) Act 1975: meaning of somone being ‘maintained’ by deceased
‘maintained’=making ‘a substantial contribution in money or money’s worth towards the reasonable needs of the applicant otherwise than for full valuable consideration pursuant to an arrangement of a commercial nature’.
} Food
} Shelter
} Power
Categories of applicant under Inheritance (Provision for Family and Dependants) Act 1975: meaning of ‘ immediately before death’
‘immediately before death’= general arrangements existing during deceased’s lifetime, temp breaks in maintenance immediately before death don’t prevent claim
Ask: is there a settled basis/arrangement between
Categories of applicant under Inheritance (Provision for Family and Dependants) Act 1975: conditions for ‘ Someone who in 2y immediately before death was living in same household as spouse/civP’
- Living in same household as one unit (Public and priv acknowledgement of mutual support and protection)
-
Akin to husband/wife/civil P
-Reasonable person would regard them as husband and wife
-Relationship openly acknowledged
-Lack of sex doesn’t preclude - For whole 2y immediately before death (temporary separation eg. hospital/care home before death doesn’t matter)
Time limit for claim under Inheritance (Provision for Family and Dependants) Act 1975
Within 6mo of grant of representation OR before grant issued
Can the court extend the time limit for family provision and what will they consider?
Yes
Will consider:
* Merits of claim
* How promptly they sought permission
* Has estate already been distributed
* PRs/beneficiaries had notice within time limit of possible claim
* Applicant has another remedy if refused (eg sue sol in negligence)
Grounds for claim for family provision?
Only ground: ‘the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or a combination of his will and that law, is not such as to make reasonable financial provision for the applicant’.
What are the standards for judging ‘reasonable financial provision’:
- Surviving spouse standard:financial provision as is reasonable in all circumstances (Consider how much would get on divorce)
-
Ordinary standard : financial provision reasonable in all circumstances for their maintenance
–’Maintenance’-payments for daily living at whatever standard is appropriate to them (rent/heating/food)=Person able to pay for own living expenses cant get
When deciding ‘reasonable financial provision’ what are the common guidelines for every applicant?
- financial resources/needs of applicant/other applicants/ beneficiaries now and infuture (earning capacity, obligations, effect on benefits)
- deceased’s legal/moral obligations to applicant/ben beneficiary
- size and nature of estate
- Disability of applicant/ben
- Anything else which may be relevant
-Eg testator written reasons (court has discretion as to how much weight to attach)
-Conduct eg applicant kills deceased (can still apply) or prolonged period of estrangement
When deciding ‘reasonable financial provision’ what are the special guidelines
SPOUSE/COHABITANT
-Age (can they work)
-Contribution to family welfare
-Length of marriage/CivP/cohabitation
-marriage: Likley financial settlement if ended in divorce/dissolution
CHILD
-Education/training
For the Inheritance (Provision for Family and Dependants) Act 1975, what order can the court make against
- Court has wide powers to make orders against net estate
- ‘Net estate’= prop deceased has/could have disposed of by will + passing by survivorship
How can payments be made under the Inheritance (Provision for Family and Dependants) Act 1975
- Periodic payments
- Lump sum
- Transfer of specific property
How can the court deal with avoidance of family provisions if someone tries to give away prop in their lifetime?
□ Someone may give away their property in their lifetime so that on their death, it does not form part of their ‘net estate’
□ BUT court can order gifts made less than 6y before death with intention of defeating claim are inc. in net estate
How can PRs protect themselves from personal liability with regards to family provision?
□ Wait 6mo from issue of grant to distribute estate
□ If claim made after 6mo, PRs not liable but applicant may be able to recover property from beneficiaries
Why may post death variation may be wanted
- Beneficiary thinks someone’s been unfairly excluded/hasn’t been left enough
- Out of court settlement for family provision claim
- Tax efficiency
Types of arrangement for post-death variation
- Lifetime gift by beneficiary (accepts and gives to someone else)
- Post- death disclaimers (Beneficiary rejects and disclaimed assets pass as though they predeceased)
- Post- death variations (Beneficiary can direct where benefit goes and on what terms)
What CANT be disclaimed?
- Part of a gift
- Once accepted a benefit from the gift
Conditions for post death variation of will
Original ben must:
□ Be over 18
□ Have mental capacity
OR court can consent for them provided variation is for their benefit
IHT impacts of disclaiming legacy
PET so could be charged IHT twice (on testators death and beneficiaries death if within 7y)
What can be done to reduce IHT impacts of a variation/disclaimer?
Can be read back into will so its as if testator gave legacy directly to new beneficiary
Conditions for disclaimer/variation to be read back into will
- In writing and signed by the original beneficiary
- State that s142 IHTA 1984 is to apply
- Within 2y deceased’s death
- Not made for a consideration in money or money’s worth.
What must happen if more IHT is payable as a result of a variation
PRs must join in the written variation.
What are the CGT considerations of a post death variation?
- A disclaimer/variation within 2y death can be read back into will for CGT purposes so theres no disposal by the original beneficiaryand no CGT charge.
- Conditions similar to IHT
