Learning Outcomes
This article covers claims under the Inheritance (Provision for Family and Dependants) Act 1975, including:
- When applications for reasonable financial provision may arise and who has standing to claim
- The distinct standards of provision for spouses/civil partners versus other applicants, and the definition of “maintenance”
- Procedural requirements and the time limit of six months from grant, including late applications
- The statutory factors guiding the court’s discretion and their application to different claimant categories
- The range of orders available: lump sums, periodical payments, transfer/settlement/acquisition of property, and variation of nuptial settlements and of the trusts on which the estate is held
- Anti‑avoidance powers addressing dispositions intended to defeat claims
- The domicile requirement and how courts approach adult child and cohabitant claims
- Practical steps personal representatives should take to protect themselves where a claim is possible
SQE2 Syllabus
For SQE2, you are required to understand and advise on claims under the Inheritance (Provision for Family and Dependants) Act 1975, including eligibility, reasonable financial provision standards, procedural time limits, the statutory decision-making framework, available court orders, and anti-avoidance powers, with a focus on the following syllabus points:
- The permitted categories of claimants and strict eligibility requirements under the IPFD Act.
- The statutory definitions of “reasonable financial provision” for spouses and for other applicants, and what “maintenance” means in context.
- The time limits for application (six months from grant) and circumstances in which the court may allow late claims.
- The range of orders the court may make: lump sums, periodical payments, transfer/settlement/acquisition of property, and variation of nuptial settlements or of the trusts on which the estate is held.
- The s 3 factors the court must weigh, and special considerations for spouses/civil partners, cohabitants, adult children and dependants.
- Anti‑avoidance measures (including dispositions intended to defeat claims), and practical protections available to personal representatives.
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.
- Name three categories of people who may apply for provision under the IPFD Act 1975.
- What is the difference between the standard of “reasonable provision” for a spouse/civil partner and that for other applicants?
- What is the basic time limit for making a claim under the IPFD Act, and can this be extended?
- True or false: The court’s only concern is the testator’s subjective wishes.
- Name two key statutory considerations the court will weigh in determining the outcome of a claim.
Introduction
When a person’s death leaves behind disappointed family or dependants, a claim for financial provision may arise under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”). You must be able to advise on these claims as a solicitor, including eligibility, limitation rules, and the court’s approach to resolving such disputes.
Key Term: domicile
The Act applies only where the deceased died domiciled in England and Wales. Domicile broadly reflects the permanent home a person regards as their own.
Categories of Applicants
Eligibility for a claim under the Act is strictly defined. The main classes are:
Key Term: spouse
A legal husband or wife of the deceased.Key Term: civil partner
A person in a registered civil partnership with the deceased.Key Term: former spouse/civil partner
A divorced or dissolved partner who has not remarried or entered a further civil partnership; claims are often barred by clean break orders made on divorce/dissolution.Key Term: child of the deceased
A biological or adopted child (adult or minor).Key Term: person treated as a child of the family
Someone (not necessarily a step‑child) for whom the deceased stood in the role of parent within a marriage/civil partnership or otherwise in a family context.Key Term: dependant
Someone who was, immediately before death, being substantially maintained by the deceased (in money or money’s worth) towards their reasonable needs.Key Term: cohabitant
Someone who lived with the deceased for at least two years immediately before death as spouse or civil partner, in the same household, though without legal status.
The IPFD Act does not allow claims by siblings, parents, or wider relatives unless they meet the definition of “dependant.”
Key Term: maintenance
For non‑spousal applicants, reasonable provision is for “maintenance.” Maintenance covers provision to meet day‑to‑day living expenses appropriate to the applicant’s circumstances; it is not a vehicle for achieving capital sharing or parity with beneficiaries.
Worked Example 1.1
Ahmed dies, leaving behind his adult son (never married), his partner of three years (not married), and a niece who has lived with him but is financially independent. Who may claim?
Answer:
The son is a child of the deceased and eligible. The partner may claim only if she cohabited with Ahmed as spouse for two or more years before death and lived with him in the same household. The niece cannot claim as she does not meet any of the statutory categories.
Reasonable Provision: Core Tests
The test of “reasonable financial provision” depends on the relationship to the deceased.
For spouses and civil partners, the standard is what is reasonable in all the circumstances—whether or not required for maintenance. The court may “cross‑check” against what a spouse might have received if the marriage had ended in divorce.
For all other applicants, it is what is reasonable for maintenance only.
Key Term: reasonable financial provision
Provision that is objectively fair in the circumstances: for spouses/civil partners it may exceed maintenance; for other applicants it is limited to maintenance.
The standard for spouses/civil partners is closer to divorce awards (sharing), whereas for others it is strictly to avoid poverty or hardship, not to achieve parity or equal division. The Supreme Court in Ilott v The Blue Cross confirmed that maintenance does not extend to “any or everything which it would be desirable for the applicant to have.”
Worked Example 1.2
Divorced wife Eve receives nothing in her former husband’s will. She remarries before his death. May she claim?
Answer:
No. A former spouse/civil partner may only claim if they have not remarried or entered a further civil partnership. In addition, many divorce orders include clean break provisions that bar claims.Key Term: clean break order
A financial order on divorce/dissolution intended to achieve finality, which may bar later claims under the Act by the former spouse/civil partner.
Procedure and Time Limits
A claim must be started within six months of the grant of representation. Claims after this require court permission and are only granted where strict criteria are met (including reasons for the delay, merits of the claim, whether the estate has been distributed, and whether the personal representatives or beneficiaries had notice within time).
The Act applies where the deceased was domiciled in England & Wales at death. Only the net estate is available for orders (i.e., what the deceased could have disposed of by will or on intestacy, minus debts, taxes and administration expenses).
Key Term: grant of representation
The authority—probate or letters of administration—issued to a personal representative, triggering the six‑month claim period.Key Term: net estate
All property the deceased could dispose of by will or on intestacy, after deduction of debts, taxes and administration expenses.
Personal representatives are exposed to personal liability if they distribute prematurely and a valid claim is later made. To protect themselves, PRs commonly wait six months after the grant before distributing, or retain sufficient funds to meet any likely order. They may also advertise under s 27 Trustee Act 1925 to protect against unknown claims (though these adverts do not protect against IPFD Act claims made in time).
Worked Example 1.3
Theresa receives a grant of probate for her deceased aunt, who died six months and three weeks earlier. Theresa’s son, who was maintained by the aunt, contacts you now wishing to claim. What is his position?
Answer:
His claim is out of time. He can apply for court permission to bring a late claim, but must explain the delay, the merits, and whether distribution has occurred. The court’s permission is discretionary and not guaranteed.
How the Court Decides
The court undertakes a two-stage analysis:
- Was reasonable financial provision made for the applicant?
- If not, what order should be made?
The statutory factors, which must be considered for every claim, include:
- Financial resources and needs of the applicant now and foreseeable in future.
- Financial resources and needs of any other applicant and any beneficiary.
- Any obligations or responsibilities the deceased had to any applicant or beneficiary (legal and moral).
- The size and nature of the estate.
- Any physical or mental disability of any applicant or beneficiary.
- Any other matter (including conduct) which the court considers relevant.
The court may also consider special factors (e.g., for spouses: duration of relationship, contribution to family welfare, age, what might have been received on divorce). For cohabitants: age, length of cohabitation, and contribution to the family welfare are relevant.
Maintenance must be viewed objectively. For non‑spousal applicants, the court asks whether the outcome meets the applicant’s reasonable needs; it will not re‑write the will to create equality. The deceased’s wishes are relevant but not determinative; “reasonableness” is assessed against the statutory matrix.
Key Term: periodical payments
Regular income payments the court may order to meet maintenance; these can be varied or discharged if circumstances change.
Exam Warning
In advising clients or sitting the SQE2, remember that a claimant’s need is necessary but not sufficient; reasonableness looks at provision, not just the deceased’s wishes. The court will balance the needs and resources of all people interested in the estate.
Range of Court Orders
If the court finds reasonable provision has not been made, it has wide powers. Orders may include:
- Payment of a lump sum or periodical payments.
- Transfer, settlement, or acquisition of property for the applicant.
- Variation of existing settlements or trusts (including variation of nuptial settlements and the trusts on which the estate is held).
- Interim provision (in urgent cases) and variation/discharge of periodical payments if circumstances change.
For spouses/civil partners, the court can approach provision as if on divorce or dissolution, using a “divorce cross‑check” and starting points closer to equality, subject to the facts. For others, only maintenance is available, not capital sharing.
Orders may attach conditions and specify how the burden should fall within the estate. Where provision is ordered by way of property, the court may direct that the property be settled for life or for a term to safeguard needs.
Key Term: nuptial settlement
A settlement made in anticipation of or during marriage/civil partnership; the court can vary such settlements to make provision for a spouse/civil partner or a person treated as a child of the family.
Worked Example 1.4
A testator leaves all his assets to his daughter. His elderly surviving wife, who is disabled and has limited means, brings a claim. The estate is worth £3m, mainly the family home. What is the likely outcome?
Answer:
As a spouse, the wife is entitled to more than mere maintenance. The court may award a right to occupy or a life interest in the home, a lump sum, and/or settlement of property. A provision comparable to what she might have received on divorce is possible, adjusted to the estate’s nature and her needs.
Key Examples of How the Act is Applied
- Adult children must show particular need, not just disappointment; estrangement alone does not prevent a claim, but conduct may reduce an award. Ilott v The Blue Cross confirmed that maintenance is limited; the adult child’s employment and resources are central.
- Claims by cohabitants require evidence of at least two years of living together “as spouse” in the same household before death. A sexual relationship is not required; the court looks at the public and private hallmarks of a shared life.
- Dependants must show actual financial support from the deceased—substantial contributions towards reasonable needs (including rent‑free accommodation, payment of living expenses, or goods/services), not merely ordinary affection or casual gifts.
Key Term: same household
“Living in the same household” focuses on the couple’s shared domestic life, mutual support, and public acknowledgement of the relationship, not simply sharing an address.
Worked Example 1.5
Marco and Elena lived together for 27 years. After a violent incident, Elena left for three months. Marco died during that period, leaving his estate to his siblings. Can Elena claim as a cohabitant?
Answer:
Likely yes. A temporary separation does not necessarily break the “same household” requirement. If the relationship continued in substance (and there was an intention to resume) up to death, the two‑year condition may be satisfied.
Worked Example 1.6
Khalid supported his adult nephew with rent and utility payments for two years before death, believing the nephew would complete training and become self‑sufficient. Khalid’s will leaves his estate to charity. Can the nephew claim?
Answer:
Possibly as a dependant. He must show substantial contribution by Khalid to his reasonable needs. If the nephew can meet his needs from other resources, the maintenance threshold may not be met; however, if ongoing support is needed, maintenance provision (e.g., a modest lump sum or periodical payments) may be ordered.
Anti‑Avoidance and Transactions Intended to Defeat Claims
The court has powers to address dispositions intended to defeat IPFD Act claims. If, within six years before death, the deceased made a disposition with the intention of defeating a claim for provision, the court may make orders restoring property or making equivalent provision, taking account of the donee’s position and any consideration given. Separately, claims may sometimes be supported by the Insolvency Act 1986, s 423 (transactions defrauding creditors), where an estate has been deliberately stripped of assets.
These anti‑avoidance tools are narrow and fact‑sensitive. The court will consider intention, timing, the donee’s knowledge, value given, and fairness of any proposed remedy.
Worked Example 1.7
A year before death, Priya gifts her investment portfolio to a friend without consideration and tells family she did so to “stop my estranged son claiming.” The estate is left to charity. What can the son do?
Answer:
He can bring an IPFD claim and ask the court to make an anti‑avoidance order addressing the disposition intended to defeat his claim. The court may order provision out of the gifted property or an equivalent sum, taking account of the friend’s position. The friend’s lack of consideration makes restoration more likely.
Practical Protections for Personal Representatives
Personal representatives should:
- Note the domicile requirement and assess whether an IPFD claim is possible.
- Avoid distribution within six months of the grant, or retain sufficient funds to meet any potential award.
- Consider advertising under s 27 Trustee Act 1925 to protect against unknown creditors and beneficiaries (this does not displace an in‑time IPFD claim).
- Keep beneficiaries informed and take legal advice if a claim is intimated.
If PRs distribute earlier, they remain personally liable unless they had court directions or other protective steps, and may need to recover assets from beneficiaries to satisfy an order.
Procedural Notes and Choice of Court
Claims are commonly issued in the county court (which has unlimited jurisdiction) or in the High Court (Family or Chancery Division). Choice often depends on complexity: claims requiring trust construction or probate validity issues may be best in the Chancery Division; claims with heavy spousal/civil partner elements sometimes suit the Family Division. The court can make interim orders where appropriate and can vary periodical payments if circumstances change.
Worked Example 1.8
The PRs wish to distribute promptly due to beneficiaries’ hardship, but a former cohabitant (who meets the two‑year requirement) has intimated a claim. How should PRs proceed?
Answer:
Delay distribution or retain adequate funds to cover a likely award. Early distribution risks personal liability. If urgent distribution is unavoidable, PRs should seek beneficiaries’ indemnities and consider an application for directions; however, indemnities may be insufficient protection.
Summary
The IPFD Act 1975 provides a mechanism for certain close connections or dependants of a deceased person to claim financial provision if unreasonable exclusion or insufficient provision is made by will or intestacy. The right to claim is strictly limited. The court must consider the resources and needs of all parties, the responsibilities of the deceased, and the nature of the estate. Provision is usually limited to maintenance, except in cases of surviving spouses or civil partners, where the court may order more generous awards; it may also vary nuptial settlements or the trusts on which the estate is held. Anti‑avoidance can address dispositions intended to defeat claims. Personal representatives should manage the risk prudently by timing distribution and, where necessary, retaining funds.
Key Point Checklist
This article has covered the following key knowledge points:
- The IPFD Act 1975 allows limited categories of claimants (including spouses, civil partners, cohabitants, children, and dependants) to claim provision against an estate.
- The standard for what is reasonable differs for spouses/civil partners (not limited to maintenance) and for other applicants (maintenance only).
- The claim must be brought within six months of a grant of representation, unless permission for extension is granted.
- The court considers financial needs, available resources, responsibilities (legal and moral), size/nature of estate, disabilities, and other relevant factors when deciding whether to award provision and on what terms.
- Court orders can range from maintenance to capital provision, with wider awards possible for spouses/civil partners. Orders can include transfer/settlement/acquisition of property and variation of nuptial settlements or of the trusts on which the estate is held.
- The court can address dispositions intended to defeat claims; PRs should protect themselves by delaying distribution or retaining funds.
Key Terms and Concepts
- spouse
- civil partner
- former spouse/civil partner
- child of the deceased
- person treated as a child of the family
- dependant
- cohabitant
- maintenance
- reasonable financial provision
- grant of representation
- net estate
- domicile
- clean break order
- nuptial settlement
- periodical payments
- same household