Individuals have freedom to leave their estate to whoever they wish in England and Wales. This is unlike the position in many jurisdictions where forced heirship rules dictate to whom an individual’s estate (or a certain portion of their estate) will pass on their death.

However, testamentary freedom in this jurisdiction is subject to statutory intervention. The Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) enables certain categories of people, who were financially dependent on the deceased, to bring a claim against their estate for reasonable financial provision.

We understand that it can be daunting to bring a claim as you are grieving for your loved one and may also be coming to terms with the fact that they have not provided reasonably for you.

We also understand that it can be daunting when a claim is brought against the estate and you are a beneficiary of the estate.

Preliminary issues

In order to bring a claim under the I(PFD)A 1975, the:

•               deceased must have been domiciled in England and Wales when they died. If the deceased was born and lived in England and Wales for their entire life this should be straightforward. However, if the deceased was born outside the UK or lived outside the UK at any time, there could be a domicile issue, which may require specialist advice.

•               claim must be issued within 6 months of the grant to the estate. The court can be asked to allow a claim outside of this time and may or may not grant permission. It is, therefore, advisable to issue legal proceedings within the 6 month period if at all possible.

Who can bring a claim?

The following individuals may bring a claim:

•               the deceased’s spouse / civil partner;

•               the deceased’s former spouse / civil partner, provided they have not remarried and provided there is no agreement not to bring a claim;

•               the deceased’s cohabitee provided they were living with the deceased as their spouse / civil partner for two years immediately before the deceased’s death;

•               a child of the deceased (including an adult child);

•               a person treated by the deceased as a child of their family; and

•               a person maintained by the deceased.

The claim is for reasonable financial provision

The person bringing the claim, known as the applicant, has one ground of claim, namely that the disposition of the deceased’s estate does not make reasonable financial provision for them.

Reasonable financial provision is measured by two standards depending on the class of the applicant:

a spouse/civil partner —for a spouse/civil partner reasonable financial provision is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive, whether or not that provision is required for their maintenance (note this generally does not apply where there was a judicial separation order);

all other applicants—for all applicants apart from a spouse/civil partner, reasonable financial provision is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.

Did the deceased make reasonable financial provision?

The applicant must show that reasonable financial provision has not been made for them in all the circumstances of the case.

The factors that the court will have regard to in all cases include:

•               the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

•               the financial resources and financial needs which the beneficiaries and any other applicants have or are likely to have in the foreseeable future;

•               the deceased’s obligations and responsibilities towards any applicant and any beneficiary of the estate;

•               the size and nature of the deceased’s net estate;

•               any physical or mental disability of any applicant and any beneficiary; and

•               any other matter, including conduct which in the circumstances the court may consider relevant.

All factors will be considered as they appear at the date of the court hearing, not at the date of death. It is, therefore, essential that all the evidence is up to date at the time of the court hearing and that it reflects such changes as may have occurred in the situation of the claimant, the beneficiaries and the estate’s value.

There are also matters that the court will have regard to for specific applicants.

Spouse/civil partner or former spouse/civil partner (not remarried / formed a new civil partnership)

The court will also have regard to:

•               the age of the applicant;

•               the duration of the marriage / civil partnership;

•               the contribution by the applicant to the welfare of the family of the deceased, including looking after the home or caring for the family; and

•               in the case of a spouse/civil partner (only), what they could have expected to receive if the relationship had ended on the day of death by reason of divorce/dissolution order rather than death.

Cohabitant

The court will also have regard to:

•               the age of the applicant;

•               the length of the cohabitation; and

•               the contribution by the applicant to the welfare of the family of the deceased, including looking after the home or caring for the family.

Child of the deceased/family

In respect of a child of the deceased and a person treated by the deceased as a child of the family, the court will also have regard to the manner in which the claimant was being or might expect to be educated or trained.

Additionally, in respect of a person treated by the deceased as a child of the family (but not a child of the deceased), the court will have regard to:

•               whether the deceased maintained the applicant and, if so, for how long and on what basis, and the extent of the maintenance; and

•               whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing the applicant was not their own child; and

•               the liability of any other person to maintain the applicant.

Persons maintained by the deceased

The court will also have regard to:

•               the length of time and basis on which the deceased maintained them and the extent of maintenance; and

•               whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant.

The Claim

Where the court is satisfied that reasonable financial provision has not been made for the applicant, it has power to make an order, including for:

•               payment of a lump sum, which is the most common order;

•               regular payments;

•               the transfer of property; and/or

•               settlement of property.

Family provision claims are very well suited to mediation or other forms of alternative dispute resolution. The advantage of this is that the parties can reach a solution to the claim that is acceptable to them as opposed to having the court impose a resolution. The majority of claims settle and do not reach a final court hearing. This is generally beneficial for all parties as it saves on costs and emotional distress.

Practical points

Commencing a claim under I(PFD)A 1975 is litigation under the Civil Procedure Rules 1998. Your legal representative should have specialist knowledge of conducting I(PFD)A 1975 claims.

Early advice should be sought as a family provision claim should be issued within 6 months of the grant.

Costs

Often clients are concerned about how to fund a claim. There are various funding options available depending on if you want to pay on an ongoing basis or enter into a funding arrangement whereby you only pay your solicitor’s fees if your claim is successful. We also offer a hybrid model whereby you pay part of our fees on an ongoing basis and the balance if your claim is successful.  We can discuss the pros and cons of the different funding arrangements with you.

Can we help you? For a free consultation, please contact us on 0113 512 7737, by email at stevennewdall@thomasharveysolicitors.co.uk or via the contact page on our website, www.thomasharveysolicitors.co.uk.

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Thomas Harvey Solicitors is a commercial dispute resolution specialist law firm. We are committed to achieving client-focused outcomes and satisfaction. Our solicitors have over 30 years of experience in handling complex commercial disputes. We provide a premium service that is client-focused, uncompromising, and backed by years of experience and expertise.

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