An Introduction to Inheritance Claims

What Makes a Successful Inheritance Claim?

Historically testators in England and Wales have testamentary freedom but as we see below certain categories of persons can make a claim on the estate as laid down in the Inheritance (Provision for Family and Dependants Act) 1975 as amended by other legislation.

Who is Eligible to Make a Claim?

The persons eligible to make a claim emerge from s1(1) of IPFDA 1975.

To make a successful claim: The Deceased must be domiciled in England and Wales and be one of the categories of litigant.

Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons: — And must be in one of the categories below:

(a) the spouse or civil partner of the deceased;

(b) a former spouse or former civil partner of the deceased, but not one who has formed  subsequent marriage or civil partnership;

(ba) for deaths occurring on after 1st January 1996 any person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living: i)    in the same household as the deceased,

and ii)   as the husband or wife or civil; partner of the deceased  

(c) a child of the deceased;

a)     any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;

b)     any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;

What is the Court’s Approach? The approach of the Court is in an objective test with two stages:

1.      Whether reasonable financial provision has been made for the applicant by the deceased under the will (or through the intestacy rules);

2.      If the Court finds that reasonable provision has not been made, it then considers what, it any provision should be made.

The decision is based on facts known at time of application and not time of death.

Has There Been Reasonable Financial Provision for the Would-Be Claimant?

Where Was the Deceased Domiciled? You need to look at the status of the applicant to determine if there has been reasonable financial provision or not. Section 1 of the Act makes clear that the 1975 Act only applies to estates at the time of death where deceased was domiciled in England and Wales.

The Court needs to look at to see whether deceased retained domicile of origin.

There are two standards A key component of the IPFDA and related legislation is the fact that there are two standards of provision – In the case of a spouse/civil partner, (including a former spouse or civil partner at the court’s discretion) the IPFDA makes a higher standard of provision based on what is reasonable in all the circumstances “whether that provision is required for his or her maintenance” (section 1(2) a.) This is termed the spouse standard.

In the case of other categories, they are entitled to what is known as reasonable provision for their maintenance only.

For all applicants, what is reasonable provision?

Matters to which court is to have regard in determining if reasonable are

: •     the financial resources and financial needs which the applicant has or is likely to have in the near future;

•     the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

•     the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

•     any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

•     the size and nature of the net estate of the deceased;

•     any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

•     any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

Spouse/Civil Partner

In the case of an application made by subsection (1)(a) above by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether that provision is required for his or her maintenance;.

In Section 3(2) there are additional guidelines.

The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to

•     the ages of the applicant and the duration of the marriage [or civil partnership];

•     the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

The Court is required to consider the provision that the applicant might reasonably have expected to receive if, on the day the deceased died, the marriage had not been terminated by death but rather by divorce/dissolution. (The divorce hypothesis).

To be within a s1(1) of the Act, the applicant’s marriage must be recognised by laws of England and Wales or by the jurisdictions in which the marriage takes place.

Under the Civil Partnership Act 2004 the Court has power to treat registered same sex couples in the same way as married couples for the purposes of the 1975 Act.

Former Spouse Rights

S 19(b) states that a spouse /c-p whose marriage to deceased has dissolved can apply for provision provided he or she has not remarried.

If she or he remarries subsequently the claim will be limited to one of maintenance between date of death and remarriage. 

Other Categories

Reasonable financial provision is limited to what is “reasonable in all circumstances for the applicant to receive for his maintenance.”

The courts have a wide discretion when considering what represents reasonable.

In Re Coventry 1979 3 WLR “above the breadline“ was reasonable and re R E decd 1966 1 WLR “sufficiently to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life.”

Cohabitee

Where an application for an order under section 2 of this Act is made by virtue of section 1(1) (ba) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to

•     the age of the applicant and the length of the period during which the applicant lived as the husband or wife or civil partner] of the deceased and in the same household as the deceased;

•     the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.