Wills: IPFDA Claims Flashcards
(24 cards)
Time limit to make an IPFDA claim
6 months from the date of the grant of representation (the court does have discretion to extend)
requirements to make a claim if being financially maintained by testator before death
must have been a substantial contribution towards the reasonable needs of that person
In which courts can you lodge an IPFDA claim?
High Court or County Court
When would you apply to Family Division of High Court for IPFDA claim?
when an application is made by a spouse, civil partner or cohabitee and there are no complex issues of interpretation
When would you apply to Chancery Division of High Court for IPFDA claim?
all cases not involving spouse, civil partner or cohabitee
How will the courts determine what a “reasonable provision” is?
The courts will consider the competing interests of the applicant and intended beneficiary, and the original wishes of the testator
Any court order made under IPFDA is deemed to be effective from
the deceased’s death
2-stage test for IPFDA 1975 claims
Did the deceased fail to make reasonable financial provision for the applicant?
What award should the court make?
2 different standards of financial provision
Surviving spouse standard (higher)
Maintenance standard
a decree of judicial separation
formalises the end of the relationship but does not legally end the marriage (particularly relevant if religion does not recognise divorce etc.)
ancillary relief
the range of financial orders that a court may make upon divorce, dissolution, annulment or judicial separation
surviving spouse standard
courts consider what would be reasonable for applicant to receive
maintenance standard
court will assess what the applicant can reasonably live on (does not match their actual standard of living during testator’s lifetime)
when considering a person’s financial resources and needs, the court must take into account
any resources and needs they are likely to have in the foreseeable future
Specific guidelines for spouse/civil partner (also extended to former spouse/CP)
Applicant’s age and the duration of the marriage/CP;
Contribution made by the applicant to the welfare of the family of the deceased;
The provision which the applicant might reasonably have expected to receive in divorce / dissolution proceedings if the couple had ended their relationship at the date of death
Additional considerations for children of the deceased making IPFDA claim
the court must also consider the manner in which the applicant was (or might expect to be) educated or trained (eg private school, university)
2-stage process for determining what award should be given
Quantum: How much should the applicant receive?
Form of award: What form should the award take?
As the IPFDA process is objective, the assessment will be based largely on
financial evidence
to assess the value of a claim, it is necessary to obtain a list of the applicant’s
assets and liabilities
Unique relevant factor where the applicant is a spouse/civil partner of the deceased
the “deemed divorce” factor - the court is required to consider the relief that might be available on divorce
Claims under the IPFDA 1975 can only be made on the ground that the deceased failed to make
‘reasonable financial provision’ for the applicant
Summarise the IPFDA process
It is an objective process and all factors have equal weight
IPFDA 1975
Inheritance (Provision for Family and Dependants) Act 1975
Will a claim be weakened if maintenance was discontinued before the deceased’s death?
Not necessarily - where maintenance is discontinued because of circumstances beyond the control of the deceased, the court may disregard any such period of discontinuance
