Posted: Monday, 23 September 2019 @ 09:43
One of the most important
thing to do is to ensure that you are eligible to make a claim.
The persons eligible to make a claim emerge from law as laid down in the Inheritance (Provision
for Family and Dependants Act) 1975: (IPDFA)
The Deceased must be domiciled in England and
The person claiming must be one of the categories of litigant and must be
one of the following categories:
i) the spouse or civil partner of the
ii) former spouse or former civil partner of the
deceased, but not one who has formed in subsequent marriage or civil
in the same household as the deceased, and as the husband or wife or civil; partner of the
iii) a child of the deceased;
iv) any person (not being a child of the deceased) was
treated by the deceased as a child of the family;
v) any person immediately before the death of the
deceased was being maintained, either wholly or partly, by the deceased.
What can you claim?
The approach of the Court is in an objective test with two
Whether reasonable financial provision has been made for the
applicant by the deceased under the will (or through the intestacy rules);
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.
What can a Spouse/Civil Partner Claim?
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.
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.
Can A Former Spouse Claim?
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.
Can Other People Claim On the Estate?
There are other categories of people who can claim.
Reasonable financial provision is limited to what is
“reasonable in all circumstances for the applicant to receive for his
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.”
What is the position with respect to a Cohabitee?
The Court will 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
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.
What is the legal position with respect to a Child of the
This class of potential Claimant includes minors,
illegitimate children and adopted children. It does not include a natural child
who has been adopted by others.
the court shall, in addition to the matters specifically
mentioned in legislation have regard to the
manner in which the applicant was being or in which he might expect to be
educated or trained, and where the application is made by virtue of section
1(1)(d) the court shall also have regard—
to whether the deceased maintained the applicant and, if so,
to the length of time for which and basis on which the deceased did so, and to
the extent of the contribution made by way of maintenance;
to whether and, if so, to what extent the deceased assumed
responsibility for the maintenance of the applicant;
to whether in maintaining or assuming responsibility for
maintaining the applicant the deceased did so knowing that the applicant was not his own child.
What Orders Can The Court Make?
If the Court decides to make an order this can be done in
the form of:
A Lump sum
The acquisition of property
The variation of an existing settlement
What are the practical steps to ensure victory in A Court
If you are making a claim consider
making a series of checks on the evidence and be ruthless in assessing the
financial worth of the claim.
Also, remember a 1975 Act claim is not a challenge to the
validity of the will. A caveat can be a useful step in blocking the probate and
protecting funds but if that caveat is challenged it will need to be withdrawn
to minimise risks on costs.
Indeed, if you lodge a caveat on erroneous grounds there is
What Other Practical Steps Can You Take?
A standing search is a sensible move to see if a grant has
been issued and if note you can be notified once this happened.
One of the crucial aspects of the IPFA Claim is the ability
to link or (unlink) if acting for the Executors between the parties.
Given this, you want to have a thorough
overview of the documents which can include the following:
Grant of Probate/letters of administration
Letter of Wishes/Any relevant correspondence on will making
Bank Statements/Credit Card Statements of both deceased and
Photographic/Email evidence of relationship
Evidence of Applicants – debts/financial needs
Evidence of Applicant Earnings
Photographs, Cards – Evidence of Applicant Linking to
Deceased/ Evidence of Deceased Linking to Non-Applicant
Are There Any Other Specific Tactics?
At this level, it comes down to emotion and money.
It is critical at an early stage to assess the size and
nature of the estate and whether it is worthwhile for either party to
make/resist a claim.
Fundamentally, a key question to ask – Is there enough in
the estate for the amount obtained/given to exceed legal costs in obtaining
that provision. Ultimately an estate which can appear significant can be
undermined by debt, Inheritance tax liability and/or high administration
Ultimately is it worth litigating about?
It is better to ask these questions at an early stage rather
than at a later stage.
The Executor should go through this process and should have
no hesitation in communicating the lack of money within the estate if he she
thinks there is.
What Things Can A Would be Claimant Do?
If making a claim focus on the
following documents to try to see how much is within the estate:
Obtain a Copy of the grant – (this shows the size of the
Ask from the Executors – Evidence of Assets, whether the
deceased held property.
What Is the Court's View of Joint Property?
The court’s view of property which is within joint tenancy
is governed by s 9 of IPFDA 1975 (as amended by paragraph 7 of Schedule 3 to
the IPTA 2014).
Section 9 permits the Court to treat the deceased’s share of
this property as part of the deceased’s net estate to such an extent as the
Court considers to be just and equitable.
What Conduct Should You Adopt?
There is no Practice Direction to the Civil Procedure Rules
relating to IPFDA Claims dealing with preaction conduct provides that, in cases
not covered by any approved protocol, the court will expect the parties to act
reasonably in exchanging information of relevance to the claim and generally in
trying to avoid the necessity for the start of proceedings.
You can propose to follow the ACTAPS Practice Guidance for
the Resolution of Probate and Trust Disputes (“the ACTAPS Code”), where a claim
is intimated under the 1975 Act. At this point in the early stage in the case it is a good
idea to pressurise the opposing party to mediate.
It is useful to send correspondence to the other side
reminding them that a refusal to mediate is likely to lead to adverse costs
If resistance remains it can be quite useful to attempt to
take the high moral ground and remind them to act in a reasonable and
proportionate way in all dealings with each other.