Learning Outcomes
After reading this article, you will be able to explain the statutory purpose of the Inheritance (Provision for Family and Dependants) Act 1975, identify who may apply for financial provision from an estate, and outline the main factors the court considers when deciding such claims. You will also be able to describe the types of orders the court can make and apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the scope and purpose of the Inheritance (Provision for Family and Dependants) Act 1975, including who may claim, the grounds for application, and the court’s approach to such claims. In your revision, focus on:
- the statutory purpose of the Act and its relationship to testamentary freedom
- the categories of eligible applicants and the meaning of “reasonable financial provision”
- the main factors the court must consider when deciding claims
- the types of orders the court can make to vary the distribution of an estate
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.
- Who may apply for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975?
- What is the difference between the standard of provision for a spouse and for other applicants?
- Name three factors the court must consider when deciding whether to make an order under the Act.
- What types of orders can the court make if a claim is successful?
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. The Act is designed to prevent hardship where close family or dependants are left without adequate support, while still respecting the principle of testamentary freedom.
Key Term: testamentary freedom
The legal principle that a person is generally free to leave their property to whomever they choose in their will.
Purpose and Scope of the Act
The Act provides a statutory safety net for family members and dependants who have not received reasonable financial provision from an estate. It enables the court to override the terms of a will or the effect of intestacy where this is justified, balancing the deceased’s wishes with the needs of those left behind.
Key Term: reasonable financial provision
The amount the court considers reasonable for the applicant’s maintenance (or, for a spouse/civil partner, what is reasonable in all the circumstances, not limited to maintenance).
The Act applies to estates of persons who died domiciled in England and Wales. It covers both testate (where there is a will) and intestate (no will) estates.
Who Can Apply?
The Act sets out specific categories of people who may apply for financial provision:
- the 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 child of the deceased (including adult children)
- any person treated by the deceased as a child of the family (such as stepchildren)
- any person who was being maintained by the deceased immediately before death
- any person who lived with the deceased as spouse or civil partner for at least two years before death
Key Term: applicant
A person who falls within one of the statutory categories and makes a claim for provision under the Act.
Grounds for a Claim
A claim may be made if the will or intestacy rules do not make reasonable financial provision for the applicant. The standard of provision depends on the applicant’s relationship to the deceased:
- For spouses/civil partners: what is reasonable in all the circumstances (not limited to maintenance).
- For all other applicants: what is reasonable for their maintenance.
Key Term: maintenance
Provision to meet the applicant’s day-to-day living expenses, not a share of the estate as of right.
Court’s Approach and Relevant Factors
The court has wide discretion. It must consider all the circumstances, including:
- the financial resources and needs of the applicant (now and in the foreseeable future)
- the financial resources and needs of any other applicant or beneficiary
- the obligations and responsibilities the deceased had towards the applicant and others
- 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
Key Term: obligations and responsibilities
Duties or moral expectations the deceased had towards the applicant or others, such as supporting a dependent child or spouse.
Worked Example 1.1
Scenario:
A widower dies leaving his entire estate to charity, with no provision for his adult daughter, who is in low-paid employment and has health problems. Can she claim under the Act?
Answer:
Yes. As a child of the deceased, she is eligible to apply. The court will consider her financial needs, health, and the size of the estate. If the court finds that reasonable provision was not made for her maintenance, it may order a payment from the estate.
Types of Orders the Court Can Make
If the court decides to make provision, it may order:
- regular payments (periodical payments)
- a lump sum payment
- transfer of specific property
- settlement of property on trust for the applicant
The court may also vary the terms of a will or the effect of intestacy to give effect to its order.
Worked Example 1.2
Scenario:
A man dies intestate, survived by his long-term partner (not married or in a civil partnership), who lived with him for three years and was financially dependent on him. She receives nothing under the intestacy rules. What can she do?
Answer:
She may apply as a cohabitant and as a dependant. The court will consider her financial needs and the extent of her dependence. If satisfied that reasonable provision was not made, the court may order payments or transfer of property to her from the estate.
Time Limits and Procedure
An application must usually be made within six months of the grant of representation (probate or letters of administration). The court may allow late applications in exceptional cases, but this is rare.
Key Term: grant of representation
The legal document authorising a person to administer the estate of the deceased (either probate or letters of administration).
The Act and Testamentary Freedom
The Act does not abolish testamentary freedom, but it limits it to the extent necessary to prevent hardship for close family and dependants. The court will not rewrite a will simply because it disagrees with the deceased’s choices. The focus is on need and fairness, not on equal division.
Exam Warning
The court will not make an order simply because an applicant is unhappy with the will or intestacy. The applicant must show that reasonable financial provision has not been made for their maintenance (unless they are a spouse/civil partner, in which case the standard is higher).
Revision Tip
For SQE1, memorise the categories of eligible applicants and the distinction between the “spousal standard” and the “maintenance standard.” Practice applying the statutory factors to short scenarios.
Key Point Checklist
This article has covered the following key knowledge points:
- The Act allows certain people to claim financial provision from an estate if reasonable provision has not been made.
- Eligible applicants include spouses, civil partners, former spouses/civil partners, children, persons treated as children, dependants, and cohabitants.
- The standard of provision is higher for spouses/civil partners than for other applicants.
- The court considers a range of factors, including financial needs, obligations, and the size of the estate.
- The court can order periodical payments, lump sums, or transfer/settlement of property.
- Applications must usually be made within six months of the grant of representation.
Key Terms and Concepts
- testamentary freedom
- reasonable financial provision
- applicant
- maintenance
- obligations and responsibilities
- grant of representation