Family Provisions and Post- death variations

Question 1

Who can bring a claim under the family provision?

Answer 1

1. Spouse or cp
2. Former spouse or cp that has not remarried
3. Child of the deceased
4. Step-child/ child of cohabited)
5. Any person who immediately before the death was being maintained by the deceased
6. Any person living the whole period of 3 years immediately before the date of death - must be in the same household as husband, wife or cp

Question 2

What is the time limit to bring a claim?

Answer 2

Within 6 months from the grant of representation

Question 3

What are the grounds to bring a claim under the family provision?

Answer 3

Whether the estate makes reasonable financial provision for the applicant

Question 4

What are the 2 standards for judging ‘reasonable financial provision’?

Answer 4

• The surviving spouse standard = allows surviving spouse as is reasonable in all the circumstances ‘whether or not that provision is required for his or her maintenance’
• The ordinary standard applies to all other categories and allows for reasonable financial provisions for maintenance

Question 5

What are the general guidelines that the court considers?

Answer 5

1. The financial resources and needs of the applicant, the other applicants and beneficiaries of the estate now and in in the foreseeable applicant
2. The deceased’s moral obligations towards any applicant or beneficiary
3. The size and nature of the estate
4. The physical or mental disability of any applicant or beneficiary
5. Anything else which may be relevant like the conduct of the applicant

Question 6

What is the effect of a post-death disclaimer?

Answer 6

When the asset is rejected, the asset passes as though the original beneficiary had predeceased

Question 7

What is the effect of post-death variations?

Answer 7

A beneficiary who caries a benefit can direct where the benefit is to go and what terms

Question 8

How can a post-variation overcome taxation problems?

Answer 8

Variations can be ‘read back’ into the will - it is as if the testator gave the legacy direct to the new beneficiary (subject to conditions)

Question 9

What are the conditions for variation or disclaimer to be read back to the deceased’s death?

Answer 9

1. Is in writing and signed by the original beneficiary
2. Within 2 years of the deceased’s death
3. Is not made for a consideration in money or money’s worth