Family Provision And Post-death Variations

Question 1

What is the inheritance Act 1975?

Answer 1

Allows certain categories of people who may be aggrieved because they have been left out of a will, or are not inheriting from intestacy, to apply to court for a Benedict of the estate.

Question 2

What are the categories for family provisions act 1975?

Answer 2

Spouse or civil partner
Former spouse or civil partner who has not remarried
A child of the deceased (whatever age)
Any person treated by deceased as a child f the family in relation to any marriage or civil partnership
Any person who, immediately before death of deceased, was being MAINTAINED by teh deceased either wholly or partly.
Any person who during 2 years ending immediately before date, was living in same household, as “husband or wife”.

Question 3

When can a child of the deceased claim under Inheritnace Act 1975?

Answer 3

More difficult for adult children to succeed. If in employment and earning capacity for foreseeable future, it is UNLIKELY that ther applicaiton will succeed, unless:

Moral obligation owed by deceased
Adult child with disability
Adult child working for deceased for many years for low wage
Child making sacrifices in order to care for deceased.

Question 4

Who counts as being maintained by the deceased immediately before death?

Answer 4

Substantial contribution in money or moneys worth towards the reasonable needed of the applicant, otherwise that’s for full valuable consideration pursuant to an arrangement of a commercial nature.

Question 5

When can cohabitants apply under Inheritance Act 1975

Answer 5

Who have not formalised relationship, must satisfy 3 conditions:

They must have been living in same household as deceased
As what seems to be husband and wife
Must have been for 2 years immediately preceding deceased death

Question 6

What is the time limit for an application under the Inheritance Act 1975?

Answer 6

6 months from date of GRANT OF REPRESENTATION.

Question 7

What are the grounds for a claim under Inheritance Act?

Answer 7

“Disposition of the deceased estate effected by the will or law, is not such as to make reasonable financial provision for the applicant”

Question 8

Who has the burden for Inheritance Act application?

Answer 8

On the applicant to show that the test is satisfied

Question 9

What are the 2 standards for judging reasonable financial provisions?

Answer 9

Surviving spouse standard

Ordinary standard

Question 10

What is the surviving spouse standard for inheritance act application?

Answer 10

Allows a surviving spouse or civil partner such financial provision as is reasonable in al circumstances, whether or not that provision is required for his or her maintenance.

Question 11

What is the ordinary standard in family provision applciation?

Answer 11

Applies to o all other categories - allows “such financial provisions as would be reasonable in circumstances for maintenance”

Question 12

What are the guidelines set out in the Inheritance Act for applications?

Answer 12

Fianncial resources and needs of applicant
Deceased obligations
Size and nature of estate
Physical and mental disability
Anything else that is relevant

Question 13

What can the court order for an family provisions application?

Answer 13

Determine amount and nature of provision.

Can make orders against the net estate, including orders for periodic payments, lump sums, transfer of specific property etc.

Question 14

What are the 3 types of post-death variations and disclaimers?

Answer 14

A lifetime gift by the beneficiary of an inheritance under a will r intestacy

Post-death disclaimers

Post-death variations

Question 15

What is a lifetime gift by beneficiary of an inheritance under a will or intestacy

Question 16

What is a post-death disclaimer?

Answer 16

Disclaimers amount to a. Rejection of the assets inherited under the will or intestacy, but law or survivorship.

Then passes through the original beneficiary had PREDECEASED.

This is appropriate, if the property passes to the person who the original beneficiary INTENDS it to benefit.

Question 17

What is post-death variations?

Answer 17

A beneficiary who varies a benefit CAN DIRECT where benefit is to go, and on what ter, re-writes the deceased will.

Question 18

What are IHT considerations in terms of post-death variations?

Answer 18

To overcome taxation problems, you can “read back” the will. These work as if the testator gave the testator direct to the new beneficiary, meaning that there is no PET on the original testators IHT charges.

Question 19

What conditions must be met for the will to be “read back”?

Answer 19

Is in writing and signed by original beneficiary

Is within 2 years of deceased death

Is not made for a consideration in money or moneys worth

Question 20

What CGT considerations should be thought of through post- death variations?

Answer 20

Disclaimer or redirection of inheritance could give rise to CGT.

A disclaimer or valuation within 2 years of the deceased death can be read back to deceased wll for CGT purposes as well!

Question 21

what section is post death variation?

Answer 21

S 142

Question 22

What factors will the court balance when deciding the claims in family provisions act?

Answer 22

Merits of the application
Promptness of the application
Whether the estate has already been distributed
Whether the PRs or beneficiaries had notice of the time limit of a potential claim
If the applicant would have another remedy available to them

Question 23

What is the difference between spouse provision and ordinary provision?

Answer 23

You must show the deceased did not make reasonable finanical provision

For spouse - in AL CIRCUMSTANCES

For non spouse - as is REASONABLE to receive maintenance

Question 24

What are the 2 orders that the court can make for a family provision claim?

Answer 24

Order payment out of the net estate. This includes prperty under the will as well as joint prperty.

Court can order a periodic, or lump sum, or the transfer of property, and say who will BEAR THE BURDEN

Question 25

What are the requirements of s 142 variation?

Answer 25

Has to be read back into teh will

Must be in writing, signed by the original beneficiary, made within 2 years of death, not for consideration, and state that s 142 applies.