Claims under the Inheritance (Provision for Family and Depen...

Learning Outcomes

This article outlines the grounds for claims under the Inheritance (Provision for Family and Dependants) Act 1975, including:

• identifying the categories of eligible applicants and distinguishing borderline cases such as cohabitants and dependants;
• explaining the different legal standards of "reasonable financial provision" for spouses/civil partners and for other applicants;
• summarising the statutory s 3 factors the court must weigh, and how they are applied in typical SQE1 problem questions;
• highlighting the six‑month limitation period from the grant of representation, the court’s discretion to extend time, and the practical implications for personal representatives;
• describing the range of orders the court may make—lump sums, periodical payments, transfers, settlements, and rights of occupation—and how these address maintenance and capital needs;
• illustrating how the “net estate” is calculated, including assets outside the will or intestacy, and how court orders may be “read back” for inheritance tax purposes;
• applying these principles to SQE1‑style multiple‑choice and scenario questions, illustrating common pitfalls and the structured approach examiners expect.

SQE1 Syllabus

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

• the categories of people eligible to apply for provision from an estate under the Act
• the legal standards for "reasonable financial provision" for different types of applicants
• the statutory factors the court must consider when deciding whether to make an order
• how the court balances testamentary freedom with the needs of dependants and family members
• the six‑month time limit to issue a claim from the grant of representation and the court’s limited discretion to extend it
• the scope of the court’s powers to order financial provision (capital, income, transfer/settlement of property, variation of certain settlements)
• the concept of the “net estate” available for provision and the interaction with property passing outside the will or intestacy.

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.

1. Who is eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
2. What is the difference in the legal standard for reasonable financial provision between a spouse and an adult child applicant?
3. List three statutory factors the court must consider when deciding whether to make an order under the Act.
4. Can a cohabitant who was financially dependent on the deceased bring a claim under the Act?

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 do not make reasonable provision for them. This article explains who can apply, the legal standards for provision, and the main factors the court considers when deciding whether to make an order.

As a procedural gateway, the deceased will generally need to have died domiciled in England and Wales, although there are limited statutory routes to claim where the deceased was not domiciled but left property situated in England and Wales. A claim must usually be issued within six months of the date of the grant of representation. Personal representatives are protected if they wait at least six months after the grant before distributing the estate; if they distribute earlier, they risk personal liability if a timely claim later succeeds.

Key Term: time limit
The usual period within which an application must be issued—six months from the grant of representation—subject to the court’s discretion to allow a late claim only where there is good reason and minimal prejudice to the estate.

The court’s powers extend to the “net estate”—a statutory concept that includes more than just assets passing under the will or intestacy. In appropriate cases, provision can be made from assets that pass outside the will, such as nominated funds or certain joint property.

Key Term: net estate
The estate available for provision under the Act, which broadly includes property passing under the will or intestacy and certain assets passing outside the will (for example, some nominated property and donatio mortis causa), subject to the Act’s definitions.

Who Can Apply for Provision?

The Act sets out specific categories of people who may apply for financial provision from an estate. Only those falling within these categories have standing to bring a claim.

Key Term: eligible applicant
A person who falls within one of the categories in s 1(1) of the Act and may apply for provision from the estate.

The main categories are:

• the surviving spouse or civil partner of the deceased
• a former spouse or civil partner who has not remarried or entered a new civil partnership (unless barred by court order)
• a person who, for at least two years before death, lived with the deceased as spouse or civil partner in the same household
• a child of the deceased (including adopted children)
• a person treated by the deceased as a child of the family (such as a stepchild)
• any person who was being maintained, wholly or partly, by the deceased immediately before death.

Key Term: maintenance
Financial support provided by the deceased to another person, not in return for full valuable consideration.

Practical points often tested:

• Former spouses/civil partners: claims can be barred where a “clean break” order was made on divorce/dissolution. If no financial provision was made or refused within 12 months of a decree of judicial separation/nullity/divorce, the court may treat a surviving spouse/civil partner’s claim as if the spousal standard applies.
• Cohabitants: the two-year requirement is strict and must cover “the whole” of the two years immediately before death living in the same household as if spouses/civil partners. If the two-year criterion is not met, a cohabitant may still apply as a “dependant” if maintained prior to death.
• Adult children: they are eligible to apply as “children of the deceased” regardless of age; however, their claims are assessed under the maintenance standard and are not automatic.
• “Child of the family”: includes those treated as a child of the family in relation to the deceased’s marriage/civil partnership or other family arrangements; consistent, enduring treatment as a child is key.
• Dependants: the 2014 amendments removed any requirement to show an “assumption of responsibility”. Contributions between domestic partners are generally not set off on a “commercial bargain” basis, and the court looks at the settled arrangement of support “immediately before death”, not merely short-term fluctuations.

Worked Example 1.1

Scenario:
Sam lived with Alex for ten years as if married, but they never formalised their relationship. Alex died, leaving everything to his brother. Sam was financially supported by Alex.

Question: Can Sam bring a claim under the Act?
Answer:
Yes. Sam may apply as a cohabitant if they lived together as spouses for at least two years before death, or as a dependant if Alex was maintaining Sam immediately before death.

What Are the Grounds for a Claim?

A claim can be brought if the will or intestacy rules do not make "reasonable financial provision" for the applicant. The court must decide whether the applicant has received reasonable provision, and if not, what order (if any) should be made.

Key Term: reasonable financial provision
The amount of financial support the court considers reasonable for the applicant to receive from the estate, according to the Act.

The standard of provision depends on the applicant's relationship to the deceased:

• For spouses and civil partners: such provision as it would be reasonable for a spouse/civil partner to receive, whether or not required for their maintenance.
• For all other applicants: such provision as it would be reasonable for their maintenance.

Key Term: spousal standard
The broader standard for spouses/civil partners, allowing the court to consider what would be fair on divorce, not limited to maintenance.

Key Term: maintenance standard
The narrower standard for other applicants, limited to what is reasonable for their maintenance.

Maintenance is not confined to bare subsistence; it covers reasonable living expenses appropriate to the applicant’s circumstances. For non‑spousal applicants (including adult children), the standard is deliberately narrower. The Supreme Court has emphasised that “maintenance” is about meeting everyday living expenses and does not extend to everything desirable for general welfare. Adult children who are self‑supporting usually need to demonstrate a specific maintenance need or compelling factors under s 3.

Timing is critical: claims must be issued within six months of the grant. The court’s discretion to extend is exercised cautiously. Factors include the merits of the claim, the promptness of seeking permission, whether the estate has already been distributed, notice to personal representatives/beneficiaries within time, and whether the applicant has another remedy (for example, negligence against their adviser).

Worked Example 1.2

Scenario:
Maria was married to the deceased for 30 years. The deceased left his entire estate to charity, leaving Maria nothing.

Question: What standard will the court apply to Maria's claim?
Answer:
The court will apply the spousal standard, considering what would be reasonable for a spouse to receive, which may include a share of capital, not just maintenance.

What Does the Court Consider?

Section 3 of the Act lists factors the court must consider when deciding whether reasonable provision has been made and, if not, what order to make. These include:

• the applicant's financial resources and needs (now and in the foreseeable future)
• the financial resources and needs of any other applicant or beneficiary
• any 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 the conduct of any person.

The court must balance the needs of all applicants and beneficiaries, the obligations of the deceased, and the available assets. For spouses/civil partners, the court can consider what would be awarded on a hypothetical divorce (“divorce cross‑check”), including factors like the length of marriage, contributions to the welfare of the family, and the parties’ standard of living. For cohabitants, the court may examine the nature of the relationship and shared finances. For adult children, relevant considerations include estrangement, the reasons given by the deceased, the applicant’s earning capacity and liabilities, any disabilities or special circumstances, and whether provision for maintenance is needed.

Conduct may be relevant but is rarely determinative. The court may also have regard to statements of reasons left by the deceased; these are not binding but can inform the “obligations and responsibilities” analysis. The Act aims to complement testamentary freedom by providing a safety net where obligations were unmet, rather than to rewrite wills simply because someone is disappointed.

Worked Example 1.3

Scenario:
The deceased leaves his entire estate to his adult son, excluding his wife of 20 years. The wife has no income and limited assets. The son is financially independent.

Question:
How is the court likely to approach the wife's claim?
Answer:
The court will consider the wife's financial needs, the son's resources, the deceased's obligations to both, and the size of the estate. The wife is likely to receive provision reflecting her needs and the length of the marriage, possibly similar to a divorce settlement.

Worked Example 1.4

Scenario:
Eleanor, an adult daughter, was estranged from her mother for many years. Eleanor is on a low income with two dependent children and modest debts. The mother’s will leaves everything to a charity.

Question:
Is Eleanor likely to succeed under the Act?
Answer:
Possibly. Although adult children are assessed under the maintenance standard, the court can award reasonable provision for maintenance where there is need. Eleanor’s low income, dependants, and debts are relevant s 3 factors. The charity’s resources and the estate’s size will be balancing factors. Estrangement is relevant but not fatal; the court focuses on need, obligations, and the overall justice of provision.

Worked Example 1.5

Scenario:
Jordan cohabited with Priya for 18 months in the same household and was supported by Priya who paid most living costs. Priya died, leaving her estate to her sibling.

Question:
Can Jordan claim as a cohabitant? If not, is there an alternative?
Answer:
Jordan cannot claim as a cohabitant because the two‑year requirement is not met. However, Jordan may apply as a dependant if Priya maintained him “immediately before death.” The court will assess the settled basis of support rather than temporary fluctuations.

How Does the Court Decide What to Award?

If the court finds that reasonable provision has not been made, it has wide powers to make orders, including:

• payment of a lump sum or regular payments
• transfer of property
• settlement of property on trust
• variation of existing settlements.

The court tailors the order to the applicant’s needs and the estate’s circumstances. Examples include:

• Housing needs: a life interest or right of occupation can be settled to avoid forced sale and to preserve capital for remaindermen.
• Income support: periodical payments may be ordered and, unlike capital transfers, can be varied later if circumstances change.
• Capital provision: lump sums to clear debts or provide modest capital for maintenance needs (for non‑spousal applicants) or a more generous share under the spousal standard.

Orders can also direct acquisition of property from the net estate for transfer or settlement and may vary ante‑ or post‑nuptial settlements for the benefit of surviving spouses/civil partners, children of the marriage, or persons treated as children of the family. The court may also vary the trusts on which the deceased’s estate is held to achieve the appropriate allocation without creating new trusts. In appropriate cases, interim relief (such as interim periodical payments) can be granted pending final determination.

The court can decide which part of the estate bears the burden of provision (for example, adjusting specific legacies or residue) to ensure fairness among beneficiaries. For inheritance tax, a court order is “read back” to the date of death: if more property passes to a spouse/civil partner as a result, the chargeable estate for IHT may reduce; conversely, an order diverting assets away from spouse exemption may increase the IHT burden.

Key Term: net estate
The estate available for provision under the Act, which broadly includes property passing under the will or intestacy and certain assets passing outside the will (for example, some nominated property and donatio mortis causa), subject to the Act’s definitions.

Practical protections for personal representatives:

• The claim time limit is six months from the grant. PRs should ordinarily await six months before distributing to avoid personal liability; if early distribution is necessary, retain sufficient funds or obtain indemnities/insurance.
• If a late claim is allowed, PRs are protected from personal liability if they waited the six-month period before distributing.

Exam Warning

The standard of provision for spouses/civil partners is broader than for other applicants. Do not confuse the two in SQE1 questions.

Revision Tip

When answering SQE1 questions, always identify the applicant's category and apply the correct legal standard for reasonable provision.

Key Point Checklist

This article has covered the following key knowledge points:

• Only certain categories of people can apply for provision under the Act.
• The standard of reasonable financial provision is broader for spouses/civil partners than for other applicants.
• The court must consider the applicant's needs, the needs of others, the deceased's obligations, and the size/nature of the estate, alongside any disabilities and other relevant matters.
• Claims should be issued within six months of the grant; PRs protect themselves by waiting six months before distribution.
• Cohabitants must meet the two‑year requirement to claim in that category; otherwise, consider a claim as a dependant.
• Adult children can succeed under the maintenance standard where there is need or compelling s 3 factors; claims are not automatic.
• The court has wide discretion in making orders—lump sums, maintenance, transfer/settlement of property, acquisition of property, variation of certain settlements, and variation of trusts holding the estate.
• Court orders may be “read back” for inheritance tax purposes, altering the tax burden.

Key Terms and Concepts

• eligible applicant
• maintenance
• reasonable financial provision
• spousal standard
• maintenance standard
• time limit
• net estate