What Does the Act Provide
Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") enables certain categories of persons to apply to the Court for an Order under Section 2 of the Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy (where the deceased died without leaving a will) or the combination of his will and that law, is not such as to make "reasonable financial provision" for the Applicant.
Who Can Apply
An application can only be made if the person who died was domiciled in England or Wales, and only the following categories of people can apply:-
- the deceased's wife or husband;
- a former wife or former husband of the deceased who has not remarried;
- where the deceased died in 1996 or later, a person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living:-
•o in the same household as the deceased, and
•o as the husband or wife of the deceased;
- a child of the deceased;
- any person (not a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family;
- any person not within the above categories, who, immediately before the deceased's death was being maintained, either wholly or partly, by the deceased. A person shall be treated as being maintained by the deceased, either wholly or partly, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards that person's reasonable needs.
What is "reasonable financial provision"?
This is defined by Section 1(2) of the Act as follows:-
- in the case of an application made by the deceased's husband or wife (except where the marriage was the subject of a Decree of judicial separation; at the date of death the Decree was in force and the separation was continuing), such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance;
- in all other cases such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.
What sort of Orders can the Court make?
Section 2 of the Act enables the Court to make any one or more of the following Orders:-
- a periodical payments (colloquially known as "maintenance") order;
- a lump sum order;
- a transfer of property order;
- a property settlement order;
- an order for the acquisition from property comprised in the estate of specified property and for the transfer or settlement of the property so acquired to the applicant;
- an order varying any ante-nuptial or post-nuptial settlement (including such a settlement made by will) made on the parties to a marriage to which the deceased was one.
What matters will the Court take account of?
If the Court considers that reasonable financial provision has not been made, in determining whether and in what manner to exercise its powers it shall have regard to:-
- the financial needs and resources which the Applicant has or is likely to have in the foreseeable future;
- the financial needs and resources which any other Applicant for an order under Section 2 of the Act has or is likely to have in the foreseeable future;
- the financial needs and resources which any beneficiary of the deceased's estate 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 Section 2 of the Act or towards any beneficiary of the deceased's estate;
- the size and nature of the deceased's net estate;
- any physical or mental disability of any Applicant for an Order under Section 2 of the Act or any beneficiary of the deceased's estate;
- 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.
Is there a time limit for making a claim?
There is indeed a very important time limit. Section 4 of the Act provides that an application for an Order "shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out".
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The content of this guide should not be considered by any reader to comprise full proper legal advice and should not be relied upon.