Learning Outcomes
After reading this article, you will be able to identify who is eligible to apply for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, distinguish between the statutory categories of applicants, and explain the main legal requirements for bringing a claim. You will also understand the importance of dependency, the standards of reasonable provision, and the key factors courts consider when assessing applications.
SQE1 Syllabus
For SQE1, you are required to understand the statutory basis for claims under the Inheritance (Provision for Family and Dependants) Act 1975, including who can apply, the different categories of eligible applicants, and the main legal principles governing such claims. In your revision, focus on:
- the statutory categories of eligible applicants under the Act
- the requirements for dependency and reasonable financial provision
- the standards and factors courts use to assess claims
- the distinction between different types of applicants (e.g., spouse, cohabitant, child, dependant)
- the practical implications for estate administration and potential claims against estates
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
Which of the following is NOT a statutory category of eligible applicant under the Inheritance (Provision for Family and Dependants) Act 1975?
- current spouse or civil partner
- former spouse who has remarried
- child of the deceased
- person maintained by the deceased
-
What is the minimum period of cohabitation required for a cohabitee to apply under the Act?
- 6 months
- 1 year
- 2 years
- 5 years
-
True or false? An adult child who is financially independent can never succeed in a claim under the Act.
-
Which standard of provision applies to a spouse or civil partner applicant?
- maintenance only
- such provision as is reasonable in all the circumstances, whether or not required for maintenance
- provision limited to what is left in the will
- provision only if the estate is over £500,000
Introduction
The Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") allows certain people to apply to the court for financial provision from a deceased person's estate if the will or intestacy rules fail to make reasonable provision for them. The Act sets out strict categories of eligible applicants and defines the standards and requirements for bringing a claim. For SQE1, you must be able to identify who can apply, what they must show, and how the courts approach these applications.
Statutory Categories of Eligible Applicants
Only those falling within the categories set out in section 1 of the Act may apply. The court has no discretion to admit claims from persons outside these groups.
Key Term: eligible applicant A person who falls within a statutory category under the Act and is permitted to apply for financial provision from a deceased’s estate.
Spouse or Civil Partner
A person who was married to or in a civil partnership with the deceased at the time of death can apply. This includes separated spouses/civil partners, but not those whose marriage or partnership has been legally ended by divorce or dissolution.
Key Term: spouse/civil partner applicant A person married to or in a civil partnership with the deceased at the date of death, entitled to apply under the Act.
Former Spouse or Civil Partner
A former spouse or civil partner who has not remarried or entered a new civil partnership may apply, unless barred by a court order (for example, as part of a divorce settlement).
Key Term: former spouse/civil partner applicant A person previously married to or in a civil partnership with the deceased, who has not remarried or formed a new civil partnership, and is not barred by court order from applying.
Cohabitant
A person who lived in the same household as the deceased as if they were spouses or civil partners for the whole of the two years immediately before death may apply. The relationship must be akin to marriage or civil partnership.
Key Term: cohabitant applicant A person who lived with the deceased as if married or in a civil partnership for at least two years before death, and in the same household.
Child of the Deceased
Any child of the deceased, regardless of age or financial independence, is eligible. This includes adopted children.
Key Term: child applicant A biological or adopted child of the deceased, regardless of age or dependency, eligible to apply under the Act.
Person Treated as a Child of the Family
A person (not being a child of the deceased) who was treated by the deceased as a child of the family in relation to a marriage or civil partnership may apply. This often includes stepchildren or others raised as children by the deceased.
Key Term: child of the family applicant A person treated by the deceased as a child of the family, for example, a stepchild, who is eligible to apply under the Act.
Dependant
Any person (not falling into the above categories) who was being maintained, wholly or partly, by the deceased immediately before death may apply. The maintenance must be substantial and not merely occasional gifts or payments for services.
Key Term: dependant applicant A person who was being maintained, wholly or partly, by the deceased immediately before death, and is eligible to apply under the Act.
Requirements and Standards for Claims
To succeed, an eligible applicant must show that the will or intestacy rules fail to make "reasonable financial provision" for them. The standard of provision differs depending on the category of applicant.
Key Term: reasonable financial provision The standard of financial support the court considers appropriate for the applicant, as defined by the Act.
Spouse or Civil Partner Standard
For a spouse or civil partner, the standard is such provision as would be reasonable in all the circumstances, whether or not required for maintenance. The court may consider what the applicant would have received on divorce.
Other Applicants: Maintenance Standard
For all other applicants, the standard is what is reasonable for their maintenance. This is a lower threshold and is focused on meeting the applicant’s needs for living expenses.
Dependency
Applicants in the "dependant" category must show that the deceased was making a substantial contribution to their reasonable needs, not merely paying for services or under a commercial arrangement.
Key Term: dependency A relationship where the deceased was making a substantial contribution to the applicant’s reasonable needs, not as part of a commercial arrangement.
Factors Considered by the Court
The court must consider all the circumstances, including:
- the applicant’s financial resources and needs (now and foreseeable)
- the financial resources and needs of any other applicant or beneficiary
- the obligations and responsibilities the deceased had towards the applicant or any beneficiary
- the size and nature of the estate
- any physical or mental disability of the applicant or any beneficiary
- any other relevant matter, including conduct
The court balances these factors to decide whether reasonable provision has been made and, if not, what order to make.
Worked Example 1.1
Scenario:
Sarah dies intestate, survived by her adult son (Tom), her cohabiting partner (Lucy, who lived with Sarah for three years), and her estranged husband (from whom she was separated but not divorced). Sarah’s will left everything to Tom. Lucy was financially dependent on Sarah.
Question:
Who may apply for provision under the Act, and what must they show?
Answer:
Lucy may apply as a cohabitant (having lived with Sarah for at least two years) and as a dependant (being maintained by Sarah). Tom, as a child, may also apply, but as sole beneficiary is unlikely to do so. The estranged husband may apply as a spouse. Each must show that the will or intestacy rules fail to make reasonable provision for them, and the court will consider their needs, the estate size, and other relevant factors.
Worked Example 1.2
Scenario:
James dies leaving a will that excludes his adult daughter, Anna, who is financially independent. Anna applies under the Act.
Question:
Can Anna succeed in her claim?
Answer:
Anna is eligible as a child of the deceased. However, as an adult child who is financially independent, she must show special circumstances or a moral obligation for provision. The court will consider her needs, the estate, and the deceased’s reasons for exclusion. Adult children rarely succeed unless there is evidence of need or special circumstances.
Exam Warning
For SQE1, remember that not all relatives or cohabitants are eligible to apply. Only those falling within the statutory categories can bring a claim. Former spouses or civil partners who have remarried or entered a new civil partnership are excluded.
Revision Tip
When answering SQE1 questions, always identify the applicant’s category and check if they meet the statutory requirements (e.g., length of cohabitation, dependency, or status at death).
Key Point Checklist
This article has covered the following key knowledge points:
- Only statutory categories of applicants may claim under the Act.
- The main categories are spouse/civil partner, former spouse/civil partner (not remarried), cohabitant (2 years), child, child of the family, and dependant.
- The standard of provision differs: spouses/civil partners may receive more than maintenance; others are limited to maintenance.
- Dependency must be substantial and not a commercial arrangement.
- The court considers the applicant’s needs, the estate, obligations, and other relevant factors.
- Adult children can apply but rarely succeed unless there is need or special circumstances.
Key Terms and Concepts
- eligible applicant
- spouse/civil partner applicant
- former spouse/civil partner applicant
- cohabitant applicant
- child applicant
- child of the family applicant
- dependant applicant
- reasonable financial provision
- dependency
