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Wills and the Administration of Estates > Workshop 2: Wills and the IPFA 1975 > Flashcards

Workshop 2: Wills and the IPFA 1975 Flashcards

**Topic** - Introduction to IPFDA 1975 - IPFDA 1975 claims

1
Q

TRUE OR FALSE

The court has the power to make provision for an applicant if it feels that reasonable financial provision has not been made for deceased’s estate

A

True

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2
Q

Can a close relative make an application to the court under the IPFA 1975 to vary the content of a will or intestacy after the deceased has died?

A

Yes

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3
Q

What are the three eligibility criteria a claimant must meet to make an application under the IPFDA 1975?

A
  1. Be within jurisdiction of the IPFDA 1975
  2. Demonstrate that thy fall within recognised category of eligible applicants
  3. Make their claim within prescribed time limit
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4
Q

Why is it important to establish where the deceased was domiciled at the date of death with respect to claim under the IPFDA 1975?

A

Because the Act only applies where the deceased died domiciled in England and Wales

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5
Q

Which three types of domicile are there?

A
  1. Domicile of origin
  2. Domicile of dependency
  3. Domicile of choice
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6
Q

What is domicile of origin determined by?

A

Determined at birth

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7
Q

What is domicile of origin based on?

A

Based on fathers domicile, if parents were married

Based on mother’s domicile, if parents were not married

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8
Q

What is ‘domicile of dependency’?

A

If relevant parent changes domicile, domicile of children under 16 changes too

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9
Q

What is ‘domicile of choice’?

A

Where an individual can choose to sever al ties with their domicile of origin (e.g., by emigrating with intention of never coming back)

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10
Q

What are the categories set out in s.1 of IPFDA 1975 that an applicant must prove that they come within the category of?

A
  • Spouse/civil partner of deceased
  • Former spouse/civil partner of the deceased who has not remarried or formed subsequent civil partnership
  • Person (not spouse/civil partner) who cohabited with deceased as if they were
  • Child of deceased
  • Person treated as child of deceased family
  • Person financially maintained wholly or partly by deceased immediately before death
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11
Q

How long before death must someone have had to cohabited with the deceased as if they were spouse/civil partner?

A

Two years prior death

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12
Q

Who does ‘child of the deceased’ under s.1 IPFDA 1975 include?

A
  • Biological
  • Adopted children
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13
Q

Where can a step child fit into one of the categories of s.1 IPFDA 1975?

A
  • Person treated as child of deceased family
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14
Q

What are the requirements of financial maintenance when questioning if someone falls within this category?

A

The deceased must have made substantial contribution in money or money’s worth towards reasonable needs of that person

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15
Q

What is the time limit for making an application under IPFDA 1975?

A

Six months after the grant of representation was made

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16
Q

How can one know when the representation of grant was granted?

A

Search government probate records online

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17
Q

Does the court have discretion to extend time limit for making a claim?

A

Yes

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18
Q

Who is the onus on to show special reasons for having exceeded the time limit?

A

The applicant

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19
Q

What should the court take into account when using discretion to extend time limit for an applicant making a claim?

A
  • Circumstances surrounding delay
  • Whether negotiations were commenced within time limit
  • If estate had been distributed before notification of the claim
  • Whether refusal to allow applicant to bring proceedings would leave them without recourse against anyone else
20
Q

Where can an application for claim be lodged?

A
  • High Court
  • Country Court
21
Q

When may it be more approrpiate to lodge an application in the Family Division of the High Court?

A

When application is made by

  • Spouse
  • Civil partner
  • Cohabitee

with no complex issues of interpretation

22
Q

When is an application more appropriate to be lodged in the Chancery Court of the High Court?

A

All other cases outside of Family Division

23
Q

Which ‘estate’ is an order under the IPFDA 1975 made out of?

A

The deceased’s ‘net estate’

24
Q

What is the ‘net estate’?

A
  • Normal succession estate
  • Deceased’s share of joint tenancy
25
Q

What are the two grounds under the IPFDA 1975 where an applicant can make a claim?

A
  1. The deceased’s will did not make reasonable financial provision for applicant
  2. Distribution of the deceased’s estate under intestacy rules fails to make reasonable financial provision for applicant
26
Q

What will the court consider when awarding the applicant’s wish, specifcially regarding the grounds of a claim?

A
  • Competing interests of applicant and intended beneficiary
  • Original wishes of beneficiary
27
Q

What orders does s.2 of IPFD 1975 give the court power to make?

A
  • Periodical payments.
  • Lump sum.
  • Transfer of property.
  • Settlement of property.
  • Acquisition of property for transfer.
  • Variation of marriage settlements.
  • Variation of civil partnership settlements.
  • Variation of the trusts on which the deceased’s estate is held (whether those trusts arise by will or intestacy).
28
Q

How would a court’s order impact tax?

A

They are treated as if the deceased had made the disposition at their death and ‘read back’

29
Q

How does the court assess whether the deceased has made ‘reasonable fincnail provision’ for the applicant?

A

By objetive assessment base don statutory criteria

30
Q

Which two sections must be considered when the court considers whether the deceased made ‘reasonable financial provision’ for them?

A
  1. s.1 - two standards for a) spouses/civil partners and b) all other applicants
  2. s.3 - sets out factors that must be considered when assessing claims
31
Q

What are the two standards provided by s.1 of IPFDA 1975?

A
  1. Surviving spouse standard
  2. Maintenance standard
32
Q

Which three conditions must be satisfied for the court to use its discretion to apply the ‘surviving spouse standard’ to an applicant?

A
  1. Former spouse/civil partner who hasn’t remarried or in another civil partnership
  2. Divorce, dissolution, nullity or judicial separation happened within last 12 months of death
  3. No order for financial provision has been made or refused in ancillary proceedings
33
Q

What is the key difference between the ‘surviving spouse standard’ and the ‘maintenance standard’?

A

Surviving spouse standard - court to consider what would be reasonable for applicant, without needing to consider what’s needed for their maintenance

Maintenance standard - court to assess what would be reasonable for applicant to live on with balance between luxury and poverty

34
Q

What are the factors that s.3 IPFDA 1975 sets out for the court to consider ‘reasonable financial provision’?

A

s.3(1)

a) The applicant’s financial resources and financial needs
b) The financial resources and financial needs of any other applicants
c) The financial resources and financial needs of any beneficiary of the estate
d) Any obligations and responsibilities which the deceased had towards any applicants or beneficiaries
e) The size and nature of the net estate of the deceased
f) Any physical or mental disability of any applicant or beneficiary
g) Any other matter the court considers relevant in the circumstances (including the conduct of the applicant or any other person)

35
Q

What does the court consider in s.3 regarding spouse/civil partners specifically?

A

s.3(2)

a) Applicant’s age and duration of their marriage/civil partnership
b) Contribution made by applicant to welfare of deceased’s family
c) Provision the applicant may have reasonably have expected to receive in divorce/dissolution proceeding

36
Q

What does the court consider in s.3 regarding cohabitees specifically?

A

s.3(2A)

a) Age of applicant and the length of the period of cohabitation
b) Contribution made by applicant to welfare of deceased’s family

37
Q

What does the court consider in s.3 regarding child of the deceased specifically?

A

s.3(3)

a) Whether and on what basis the deceased maintained the applicant
b) Duration and extent of maintenance
c) Whether and to what extent deceased assumed responsibility for applicant’s maintenance
d) Did the applicant know the child wasn’t theirs when maintaining
e) Liability of other person(s) to maintain applicant
f) Manner in which the applicant was or may expect to be educated or trained

38
Q

What does the court consider in s.3 regarding all other applicants?

A

s.3(4)

a) Length of time and basis deceased maintained the applicant
b) Extent of contribution made by way of maintenance
c) Extent of deceased assuming responsibility for maintenance of applicant

39
Q

What components comprise the ‘two stage test’ when considering what ‘reasonable financial provision’ should be made?

A
  1. Reasonable financial provision
  2. Court award
40
Q

What are the two components to consider after completing stage 1 of the two-stage test and confirming that the deceased failed to make reasonable financial provision for the applicant?

A
  1. Quantum: how much should the applicant receive?
  2. Form of award: what form should the award take?
41
Q

What should also be give consideration when at stage 2 of the two-stage test of deciding what award the court should make?

A

The s.3 guidelines/factors

42
Q

What must be obtained from the applicant in assessing the value of a claim under IPFDA 1975?

A

A list of their assets and liabilities, including future

43
Q

What are some considerations to made at stage 2 of the two-stage test with divorce?

A
  • Court to consider he relief that may have been available on divorse
  • Question whether it is appropriate to award applicant outright interest in the estate
  • Not correct to assume that the applicant will receive a 50% interest in estate
44
Q

What may be a better award to an applicant than a capital interest?

A

A life interest under IPFDA 1975

45
Q

Which circumstances may a life interest be more rewarding to an applicant than a capital interest?

A
  • Applicant still wants to live in family home
  • Deceased has children from another r’ship, whom the applicant would be unlikely to leave the property upon their death

Wills and the Administration of Estates (9 decks)

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