The inheritance (Provision for Family and Dependants) Act 1975
Testamentary freedom is a hallmark of the English law of succession. At the same time, the
inheritance (Provision for family and dependants) Act 1975 is a vigorous jurisdiction with widening
classes of applicants and greater numbers of claims. Recent case law demonstrates this growth and
can be interpreted as a subtle shift of emphasis away from testamentary freedom to testamentary
fairnessi.
In the United Kingdom we value our freedom to testamentary disposition. By comparison to our
European countries who have forced heir-ship, but in comparison are fortunate to be able to dispose
of our assets as we wish.
However the question we need to examine is how much freedom do we really have? The Inheritance
(Provision for family and Dependants) Act 1975 (the 1975 Act) and its continuous development
suggest that we are moving from this testamentary freedom towards a development in English law
and adopting the principle of fairness and responsibility to those who may have depended on the
testator.
The 1975 Act works allows certain family members and other classes who fall with the categories of
the Act to apply to the court for a share (or an increased share) of the decreased persons estate on
the basis that the basis that the provision made for them by the deceased persons estate on the
basis that their Will, or as a result of intestacy, as not made reasonable provision for them.
The 1975 Act allows certain classes of applicants to be able to apply to the court if reasonable
provision has not been made for themii. These classes of applicants is continually reviewed over the
years to ensure that the modern needs of society are met to ensure that no potential applicants are
excluded from applying under the 1975 Actiii.
The applicants who can apply to the court under the 1975 Act have a strict time limit to notify the
court of their intention. An applicant must notify the court within a period of six months of when
either the grant of probate or the letter of administration is given to the estate representationiv.
The test for the court to consider in accessing each application is a two stage test. It must first ask
whether the deceased estate makes reasonable financial provision for the applicant either by Will,
or under the rules of intestacy. Assuming that there is no provision made for the applicant, the court
must then ask what reasonable financial provision should be made if any.
The nature of reasonable financial provision will differ depending on the status of the applicant. If
the applicant is a spouse of the deceased the test is: such financial provision as it would be
reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that
provision is required for their maintenance. In the case of any other applicant, including a former
spouse of the deceased, ‘reasonable financial provision’ means such provision as it would be
reasonable in all the circumstances of the case to receive for their maintenancev.
The court must consider the factors which are set out in the 1975 Act. The key factors being
financial: the size of the estate; and the financial needs and resources of the applicant, any other
applicant and the beneficiaries. The court can also consider other factors such as whether the
applicant has any mental or physical disability and any other relevant matter, including the deceased
conduct when assessing a claim. The court when making an award under the 1975 Act must consider
all of the factors to arrive at a position of fairness within the context of the deceased resources and
relationshipsvi
There are other factors which are crucial to the court these being will want to obtain the full details
of the applicant’s financial needs and resources at an early stage. The applicant’s earning capacity
will also have to be taken into account. If the applicant is suffering from a disability is suffering from
a disability, it is likely that medical evidence will be required as to its effect on their ability to work
and life expectancy.
The 1975 Act is primary concerned with relationship of financial dependence between the applicant
and the deceased. The Court of Appeal decision in Harlow v National Westminster Bank [1994]
makes it clear that in order to be taken into account, the obligation to maintain must be one which is
still subsisting at the date of the deceased’s death. It is not always easy to decide whether a
particular incident or chain of events should be regarded as creating an obligation for the purpose of
section 3(1)(d)or as ‘any other relevant matter’ under section 3(1)(g)vii. Sometimes the decision is
clear, as in the case where the deceased has made a promise, not necessarily to the applicant, to
leave certain assets to the applicant. Such promises were held to create an obligation in Goodchild v
Goodchild [1997] and Espinosa v Bourke [1999].
The case law relating to adult children perhaps highlights the difference between forced heir-ship
systems and what the 1975 Act is designed to do. Although eligible to apply under section 1(1)(c), it
appears that the adult children of the deceased who have been capable of maintaining themselves
will, unless they can establish that there is a very good reason why they should be provided for by
someone other than themselves, have difficulty succeeding with a claim.
The leading cases show how the 1975 Act will be applied and if adult children’s applicant’s claims
will be successful in the courts. The cases of Garland V Morrisviii and the case of Ilot v Mitsonix, both
show that every applicant’s outcome will vary depending on the merits and factors of each case.
Summary
The 1975 Act is an important piece of legislation and one which is being used more and more
frequently. The 1975 is a subtle shift of emphasis: a move away from the much-vaunted ideas of
testamentary liberty towards a redistributive system more concerned with the fairness of
testamentary disposition.
i Succession, Fosters pp 101 , E Exton and Julian Washington
ii Inheritance (Provision for Family and Dependants) Act 1975, Section 1 (a)-(e),
iii Law Reform (Succession) Act 1995 and the Civil Partnership Act 2004
iv Inheritance (Provision for Family and Dependants) Act 1975, Section 4,
v Rollingsons Solicitors, ‘The Inheritance (Provision for Family and Dependants) Act 1975
vi Inheritance (Provision for Family and Dependants) Act 1975, Section 3(1),
vii Inheritance (Provision for Family and Dependants) Act 1975, Section 3,
viii Garland v Morris [2007] W.T.L.R 797
ix Ilot v Mitson [2011] EWCA Civ 346
