IPFDA 1975

Question 1

Can a person be entitled to more than is due under the Will or Intestacy?

Answer 1

Yes, if they make a successful claim against the estate under the Inheritance (Provision for Family Dependents) Act 1975.

Question 2

Broadly, what does this Act allow?

Answer 2

A close relative or dependent to apply to the court for variation of the Will or Intestacy so that reasonable provision is made for them.

Question 3

What are the 3 preconditions for a claim?

Answer 3

1. The deceased died whilst domiciled in England and Wales.
2. The applicant is in an eligible category
3. The claim is made in the prescribed time limit.

Question 4

How is domicile determined?

Answer 4

1. Domicile of Origin: Determined at birth. Based on mother’s domicile, unless parents were married. If so, based on the father’s domicile.
2. Domicile of Dependency: For a child under 16, this is the dependent parent’s (or parents’) domicile.
3. Domicile of Choice: A person who immigrates from or to the UK, with no intention of returning.

Question 5

Who falls within the category of eligible applicants?

Answer 5

• Spouse / CP
• Former spouse / CP not yet remarried (unless a clean break divorce)
• A child of the deceased (inc adopted)
• A person treated as a child of the family
• Any other person financially maintained by the deceased immediately before their death

Question 6

What does “financially maintained” mean?

Answer 6

The deceased made a substantial contribution in money or money’s worth to their living costs. Doesn’t cover commercial arrangements.

Question 7

What is the prescribed time limit?

Answer 7

Must be made not more than 6 months after the date of the grant of representation. However, the application can be made before the grant is issued.

Question 8

Is the prescribed time limit absolute?

Answer 8

No, the court may extend it. The court will consider:
1. Reasonable delay.
2. If negotiations with a view to settle were occurring before the end of the time limit.
3. If the estate had already been distributed before the claim was notified.
4. Whether the refusal to allow the applicant to bring proceedings would leave them without recourse against anyone else.

Question 9

Does the application have to be filed in a specific court?

Answer 9

It can be filed in either the County Court or the High Court.

Question 10

What property does the IPFDA 1975 cover?

Answer 10

1. The succession estate
2. Property in which deceased held a general power of appointment, not exercised
3. Property given by donatio mortis causa
4. Deceased’s severable share of a joint tenancy
5. Property in lifetime transfers that is caught by anti-avoidance provisions

Question 11

What does “reasonable provision” mean?

Answer 11

1. Surviving spouse standard: Such financial provision as is reasonable for a spouse or Civil Partner to receive.
2. Maintenance Standard: Such financial provision as is reasonable for the applicant’s maintenance

Question 12

What can the court order?

Answer 12

The court can order one or more of the following:
1. Periodical payment
2. Lump sum
3. Property transfer
4. Settling property on trust
5. Acquiring property for transfer
6. Variation of the trusts on which the deceased’s estate is held

Question 13

Does the court take into account the deceased’s wishes?

Answer 13

Yes, but these are not conclusive.

Question 14

What factors are taken into account when considering whether reasonable financial provision was made?

Answer 14

The IPFDA Guidelines:
* What are the applicant’s current resources and current needs? What about in future?
* The same for any other applicant, or beneficiary of the estate of the deceased
* Obligations towards applicant / beneficiary
* Size / nature of net estate
* Physical or mental disability of any applicant

Question 15

How does the court calculate the award?

Answer 15

It is necessary to provide a list of the deceased’s assets and liabilities. This includes future assets and liabilities.