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LPC Law Notes Private Client Notes

I Pfd A Claims Notes

Updated I Pfd A Claims Notes

Private Client Notes

Private Client

Approximately 235 pages

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I(PFD)A CLAIMS

Inheritance (Provision For Family and Dependants) Act 1975

Three-stage process:

1 Can the individual apply?
Domicile and Time Limits
  • Deceased must die domiciled in England and Wales

  • Application must normally be made within six months of date of grant

  • Court has discretion to allow late applications

Applicants
  • Spouse or civil partner

    • there must have been a subsisting marriage at the time of death

    • this will include a judicially separated spouse

  • Former spouse/civil partner who has not remarried

    • former spouse/civil partner may be barred from applying by court order or the granting of the decree of divorce on nullity (ss.15 & 15A)

  • A person who has cohabited with the deceased

    • for at least 2 years

    • Re Watson [1999]: can ignore short time apart – e.g. hospital stay

  • Child of deceased

    • includes a child of a non-marital relationship, an adopted child, and a child en ventre sa mere

    • an adopted child is not able to make a claim as a child of the natural parent

    • a child of any age may apply, but historically, applications from able-bodied adults capable of earning their own living have not been treated sympathetically by the courts, unless the adult remains in full-time education (reasonableness test)

  • Person treated by the deceased as a child

    • treated as a child of the family in connection with a marriage/civil partnership to which the deceased was a party

    • person can be a child of the family even if they were already an adult when the deceased married (or entered into a civil partnership with) their parent

  • Person who immediately before death of deceased was being wholly or partly maintained by deceased

    • s.1(3): “a person is to be treated as being maintained … if the deceased was making a substantial contribution in money or money's worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration”

    • Bishop v Plumley [1991] care & nursing for free accommodation is not valuable consideration

2 Does the deceased’s will or intestacy make reasonable provision for the applicant?
Surviving Spouse Standard
  • S.1(2)(a): such financial provision as it would be reasonable in all the circumstances for a spouse to receive whether or not required for maintenance

Ordinary or Maintenance Standard
  • S.1(2)(b): such financial provision as it would be reasonable for the applicant to receive for this maintenance

  • Objective test – Re Coventry (dec’d) [1980]

  • Re Dennis [1979]: ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of daily living at whatever standard of living is appropriate to them

3 How should the court exercise its discretion to make an order?

Common Guidelines –

s.3(1)

  • Financial resources and needs of applicant

  • Financial resources and needs of other applicants – Stephanides v Cohen [2002]

  • Financial resources and needs of beneficiaries

  • Obligations and responsibilities of deceased towards the applicant

  • Size and nature of full estate – Re Fullard [1981]

  • Physical or mental disability of applicant – Re Wood (1982)

Particular Guidelines
  • Spouse/civil partner and former...

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