SQE1 FLK2

## Learning Outcomes

This article outlines claims under the Inheritance (Provision for Family and Dependants) Act 1975 and the factors considered by the court, including:

- The statutory purpose and structure of the 1975 Act in the context of wills and intestacy
- Identification of eligible applicants and how borderline categories (cohabitants, “children of the family”, maintained persons) are tested in problem questions
- Distinction between the surviving spouse standard and the ordinary maintenance standard, and when each applies
- Systematic application of the section 3 statutory factors to different applicant types, with emphasis on needs, obligations, and competing beneficiaries
- Evaluation of financial resources, earning capacity, disability, estate size, and liquidity when assessing “reasonable financial provision”
- The role of conduct and the deceased’s stated reasons within the overall section 3 balancing exercise
- Procedural framework: limitation period, the court’s discretion to extend time, and practical protection for personal representatives
- Identification of property forming part of the “net estate” and the interaction with assets passing outside the estate
- Types of orders available (capital, income, and property orders) and how they can be tailored to maintenance needs and illiquid estates
- Practical implications for estate administration, advising potential applicants or PRs, and structuring clear, exam‑standard answers

## SQE1 Syllabus

For SQE1, you are required to understand claims under the Inheritance (Provision for Family and Dependants) Act 1975 and the court’s assessment framework, with a focus on the following syllabus points:

- categories of persons entitled to apply under the 1975 Act (s 1)
- standards of “reasonable financial provision” (surviving spouse standard vs ordinary maintenance standard)
- statutory section 3 factors and how they are weighed in context
- financial resources and needs (present and foreseeable), earning capacity, and impact on state benefits
- obligations and responsibilities (legal and moral), including parental duties and assurances
- the size and nature of the net estate, including liquidity and illiquid assets (family home, business)
- relevance of physical or mental disability of applicants or beneficiaries
- the court’s discretion to consider “any other matter” (including conduct and reasons)
- procedural essentials: 6‑month time limit from grant and the court’s discretion to extend; PRs’ protection against personal liability
- property available for financial provision from the net estate and interaction with assets passing outside the will or intestacy
- types of orders (lump sum, periodical payments, property transfer, settlement, purchase of property, variation of settlements/trusts of estate)
- practical estate administration implications and distribution timing

## Test Your Knowledge

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, look more closely at that area during your revision._

1. Who is eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
2. List three statutory factors the court must consider when deciding whether to make an order for financial provision under the Act.
3. True or false? The court must always prioritise the applicant’s needs over those of other beneficiaries.
4. What is the significance of the size and nature of the estate in an Inheritance Act claim?

## Introduction

The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) allows certain people to apply to the court for reasonable financial provision from a deceased person’s estate if the will or intestacy rules do not make such provision. The Act gives the court discretion to vary the distribution of the estate, balancing the deceased’s wishes with the needs of eligible applicants and other beneficiaries.

![Eligibility criteria and section 3 factors in claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975](https://static.pastpaperhero.com/images/sqe1-flk2-claims-under-the-inheritance-provision-for-family-and-dependants-act-1975-factors-considered-by-the-court_00.png)

_Eligible applicant categories, section 3 factors, and the court’s decision whether reasonable financial provision should be ordered under the 1975 Act._

The court evaluates applications against two standards of reasonable financial provision. For a surviving spouse or civil partner, provision is judged by what would be reasonable in all the circumstances (not confined to maintenance). For all other categories, the statutory test limits provision to what is reasonable for the applicant’s maintenance, understood as meeting appropriate living costs and recurring expenses. These standards frame the court’s assessment of the section 3 factors.

Applications must normally be issued within six months of the grant of representation. The court has power to extend time, but will do so only if there is good reason for delay, the merits justify it, and prejudice to those who have already received distributions is considered. Personal representatives (PRs) can protect themselves by postponing distribution until the end of the six‑month period or retaining sufficient funds to meet any potential order.

> **Key Term: reasonable financial provision**
> The standard of provision the court considers appropriate for an applicant under the Act. For spouses/civil partners it is what is reasonable in all the circumstances; for others it is what is reasonable for their maintenance.
> **Key Term: surviving spouse standard**
> The measure of reasonable financial provision for a spouse or civil partner—such provision as is reasonable in all the circumstances, not limited to maintenance and often informed by what might have been awarded on divorce.
> **Key Term: ordinary maintenance standard**
> The measure applicable to all non-spouse/civil partner applicants—limited to provision reasonably required for maintenance (recurring living costs and appropriate standard of living), not capital gifts beyond needs.

### Eligible Applicants

Only specific categories of people may apply for provision under the Act. These include:

- spouses or civil partners of the deceased
- former spouses or civil partners who have not remarried or entered a new civil partnership (subject to divorce/dissolution orders and any bar in the financial settlement)
- cohabitants living with the deceased as spouse or civil partner for at least two years before death
- children of the deceased (including adopted children)
- persons treated as a child of the family (including in non‑marital and “single‑parent family” contexts)
- anyone maintained (wholly or partly) by the deceased immediately before death

Cohabitants qualify if they lived in the same household “as husband and wife” or “as civil partners” for the two years immediately before death. A “child of the family” reflects the deceased’s parental role, even if the child was adult when that role started. The “maintained” category requires evidence of a substantial contribution in money or money’s worth towards reasonable needs, not arising from a strictly commercial arrangement.

> **Key Term: applicant**
> A person entitled to apply for financial provision from the estate under the Act.

### Statutory Factors Considered by the Court

When deciding whether to make an order for financial provision, the court must consider all the circumstances of the case. Section 3 of the Act sets out a list of statutory factors that guide the court’s assessment.

### Financial Resources and Needs of the Applicant

The court examines the applicant’s current and foreseeable financial position, including:

- income and earning capacity (actual and potential)
- assets and property (including housing security)
- debts and liabilities
- reasonable living expenses (appropriate to the applicant’s age, health, and lifestyle)
- impact of any order on entitlement to means‑tested benefits

For non‑spouse applicants, the focus is on maintenance. That includes meeting rent or mortgage payments, utilities, food, clothing, transport, and modest contingencies consistent with the applicant’s circumstances. The court will distinguish between capital sought purely to improve lifestyle and capital reasonably required to secure maintenance (for example, a modest housing fund where rental is impractical).

> **Key Term: financial needs**
> The applicant’s present and future requirements for maintenance, support, and living expenses.

### Financial Resources and Needs of Other Applicants and Beneficiaries

The court must also consider the financial position of any other applicants and all beneficiaries under the estate. This ensures that provision for one person does not unfairly prejudice others. Competing claims are common—for example, a cohabitant’s need for housing versus adult children’s expectations. The court will balance needs and resources across all parties, taking into account their earning capacity, financial obligations, and any alternative housing or income sources.

### Obligations and Responsibilities of the Deceased

The court assesses any legal or moral obligations the deceased had towards the applicant or other beneficiaries. This may include:

- duties as a spouse, parent, or carer (for example, continuing support of a dependent child)
- assurances or understandings (for example, long‑standing promises that certain property would pass)
- contributions made by the applicant to the deceased’s welfare, household, or estate (such as sustained caregiving or unpaid work in a family business)

The weight of moral obligations varies with the facts; an assurance never crystallised into a binding proprietary right can still be relevant to the s 3 balance.

### Size and Nature of the Net Estate

The value and composition of the estate affect what provision can reasonably be made. The court considers:

- total value of assets
- liquidity (how easily assets can be converted to cash)
- existing liabilities and debts
- whether provision can be structured to avoid forced sales (for example, by granting a life interest in a home, deferring sale, or creating a charge)

Illiquid estates (family homes or trading businesses) often call for solutions that preserve value and minimise disruption—such as allowing continued occupation, staged payments, or settlement of property subject to safeguards.

> **Key Term: net estate**
> The total value of the deceased’s assets after deducting debts, liabilities, and funeral expenses.

### Physical or Mental Disability

Any physical or mental disability of the applicant or a beneficiary is a relevant factor. The court will consider:

- current and future care needs
- impact on earning capacity and employability
- additional housing or adaptation costs
- availability of state support and the effect of an order on that support

Where disability significantly constrains earning capacity or increases living costs, maintenance will be calibrated accordingly.

### Any Other Relevant Circumstances

The court has discretion to consider any other matter it deems relevant, including the conduct of any party or the deceased’s reasons for making (or not making) provision. A detailed letter of reasons can be persuasive but is not determinative; reasons sit alongside the statutory factors. Estrangement, blame, or lifestyle choices may influence the outcome but do not bar a meritorious maintenance claim.

### Worked Example 1.1

Scenario:
A widower dies leaving his entire estate to his adult son. His daughter, who is disabled and unable to work, receives nothing. She applies under the Act.

> **Answer:**
> The court will consider the daughter’s financial needs (including her disability), the son’s financial position, the deceased’s obligations as a parent, and the size of the estate. The court may order provision for the daughter if it finds the will did not make reasonable financial provision for her maintenance. If the estate is illiquid, provision may be structured to avoid forced sale—for example, a charge over the property or staged payments.

### Worked Example 1.2

Scenario:
The deceased leaves his estate to his new spouse, excluding his adult child from a previous marriage. The child is employed and financially independent but claims under the Act.

> **Answer:**
> The court will consider the child’s financial resources and needs, the spouse’s needs, the deceased’s obligations to both, and the size of the estate. If the child is self‑sufficient, the court may find that no further provision is reasonable, especially if the spouse has greater needs. The spouse is assessed against the broader surviving spouse standard; the adult child against maintenance only.

### Worked Example 1.3

Scenario:
A partner dies intestate. His cohabitant of 15 years (living together for the two years immediately before death) is not provided for under intestacy and seeks provision to remain in the shared home.

> **Answer:**
> The cohabitant is eligible under the Act. The court will examine her financial resources and needs, the estate’s size and liquidity, the deceased’s obligations arising from the long relationship, and any competing beneficiaries’ needs. Reasonable maintenance may be secured by permitting occupation for a period, creating a life interest, or awarding a lump sum to fund housing, calibrated to the estate’s value.

### Worked Example 1.4

Scenario:
A former spouse who has not remarried applies for provision despite a prior divorce order aimed at a clean break.

> **Answer:**
> The former spouse is eligible in principle, but the court will scrutinise the divorce settlement. Where a clean break was achieved and adequate provision made, a later claim will rarely succeed. The court will consider whether any obligations persist and whether changed circumstances justify maintenance, mindful of the finality intended by the divorce order.

### Worked Example 1.5

Scenario:
An adult child, estranged for many years, lives on modest means and receives state benefits. The will leaves everything to charity and contains a signed statement explaining the exclusion.

> **Answer:**
> The ordinary maintenance standard applies. The court will weigh the child’s resource constraints, earning capacity, the estate’s size, the charities’ interests, and the stated reasons. Modest maintenance provision may be ordered (for example, a lump sum to reduce hardship) if needs justify it, even where estrangement and reasons exist. Any award will be carefully structured to avoid disproportionately affecting benefits if possible.
>
> **Exam Warning:**
> The court does not automatically favour the applicant. It must balance all relevant factors, including the needs of other beneficiaries and the deceased’s wishes. Adult children who are financially independent will rarely succeed unless there are special circumstances. Cohabitants and those in the “maintained” category must prove substantial support, not purely companionship. Orders will be tailored to maintenance needs, especially where estates are illiquid.
>
> **Revision Tip:**
> Memorise the statutory factors in section 3 of the Act and be able to apply them to different applicant categories and fact patterns. Distinguish clearly between the surviving spouse standard and the ordinary maintenance standard. Recall the six‑month time limit from the grant, the court’s discretion to extend, and the practical steps PRs take to avoid personal liability.

### Practical and Procedural Context

The court may make a range of orders to achieve reasonable financial provision, chosen and shaped by the s 3 factors and the applicable standard. These include:

- a lump sum (one‑off capital for maintenance needs)
- periodical payments (regular maintenance payments)
- transfer of specific property (for example, a home)
- settlement of property (for example, a life interest in a home for a cohabitant or spouse)
- acquisition of property for transfer or settlement (using estate funds to buy suitable housing)
- variation of ante‑/post‑nuptial settlements for the benefit of a surviving spouse, children, or those treated as children of the family
- variation of the trusts on which the deceased’s estate is held (to re‑shape the beneficial interests)

Where the estate is small, lump sums may be the only practical form of provision; where the estate is illiquid, settlements or deferred charges can avoid improvident sales. Orders may specify which parts of the estate bear the burden of provision and can be structured to operate fairly as between beneficiaries.

Applications must be brought within six months of the grant of representation. The court can extend time where the merits justify it and delay is excusable, but late applications are exceptional. PRs can avoid personal liability by postponing distribution until the end of the six‑month period or retaining sufficient funds if earlier distribution is necessary.

Property available to satisfy orders is the “net estate”. Assets passing outside the estate by survivorship or nomination are not generally part of the net estate, although the court can, in appropriate cases, vary certain settlements connected to marriage or civil partnership, or the trusts of the estate, to achieve fair provision. Orders altering the disposition of the estate are treated as effective from death for inheritance tax purposes, so increasing spouse exemption or changing charitable gifts can affect the tax profile proportionately.

## Key Point Checklist

_This article has covered the following key knowledge points:_

- Only certain categories of people can apply for provision under the Inheritance (Provision for Family and Dependants) Act 1975.
- The court must consider all the circumstances, including statutory factors such as financial needs, obligations, and the size of the estate.
- The court balances the needs of the applicant with those of other beneficiaries and the deceased’s wishes.
- Physical or mental disability of any party is a relevant factor and can increase maintenance needs.
- The court has discretion to consider any other relevant matter, including conduct and the deceased’s reasons.
- Two standards apply: the surviving spouse standard (not limited to maintenance) and the ordinary maintenance standard (maintenance only).
- Orders can take different forms (lump sum, periodical payments, property transfer, settlement, purchase, variation of settlements/trusts of estate).
- Claims must usually be brought within six months of the grant; the court can extend time only in justified cases. PRs should delay distribution or retain funds to avoid personal liability.
- Illiquid estates may call for solutions that avoid forced sale (life interests, deferred charges, staged payments).

## Key Terms and Concepts

- reasonable financial provision
- surviving spouse standard
- ordinary maintenance standard
- applicant
- financial needs
- net estate


Claims under the Inheritance (Provision for Family and Dependants) Act 1975 - Factors considered by the court