Inheritance

Online Will Writing Blog Article
Table of Contents
    Add a header to begin generating the table of contents

    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

    Share this post

    Matt Walkden Will Writer

    About Matt Walkden

    I am a Professional Will Writer and I offer a small number of other products that complement my Will Writing such as Lasting Power of Attorneys (LPA’s), Fixed Price Estate Administration, often called Probate and some Property Products such as changing a family home from Joint owners to Tenants in Common.

    Contact An Expert Today

    Pay by Card or PayPal

    Read why over 13,000 people have written a will with us...

    As well as the many hundreds of times our clients recommend us to their friends and families, please read what some of them have written to us and said…

    “They really do cover everything thoroughly and provide comprehensive supporting information with friendly and empathetic telephone support, during what could be for some people, a traumatic process. I am so pleased thatI found them whilst doing a lot of research online and I can now rest assured that my legacy is in safe hands.”
    Mrs R. Dow, Cornwall
    “I’m very impressed with the service that your company has offered and how quick and hassle free the process has been. I will definitely recommend your service to my family and friends.”
    Miss D. Blakley – Kent
    “Please be assured that I have found your service to be nothing short of exceptional and will have no hesitation in recommending yourselves to anyone considering making a Will.”
    Mr A. Sharp, Cornwall

    Worked with us recently? Leave us a review.

    Latest Blog Posts

    When it comes to your peace of mind and your family’s welfare, the right time is now. Take a few moments to start the process of creating your will today and receive the first draft in as little as 48 hours.

    Deceased Estate Online Will Services

    Deed of Variation

    Deed of Variation and the three main ways that they can be used to protect assets and reduce Inheritance Tax
    Read More
    Will Writing Guardians

    The Importance of Family Will Writing

    Many people, especially young families, postpone family will writing. Maybe it is because it may seem unpleasant, far off, or it appears as a physical ...
    Read More
    Town Houses Blog

    Your Home

    Make Sure the Right People Inherit Your Home For most of us these days our home is our biggest asset. And with mortgage interest rate ...
    Read More