Learning Outcomes
After reading this article, you will understand when a claim may arise under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFD Act), who may apply, the core tests for reasonable provision, the time limits and procedural points, how the courts exercise discretion, and the possible orders that may be made. This knowledge will enable you to address SQE2-style scenarios concerning probate disputes where disappointed individuals seek provision from an estate.
SQE2 Syllabus
For SQE2, you are expected to proficiently advise on claims made against deceased estates under the IPFD Act. You must understand the circumstances in which applicants may or may not claim financial provision, the required legal tests, and the approach the courts will take. Your revision should focus on:
- 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.
- The time limits for making claims and when the court might allow late applications.
- The range of orders the court may make, including financial, property, and variation orders.
- The key factors the court considers when deciding whether to make an order and how much provision to award, especially in the context of difficult family circumstances.
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.
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 unless barred by final financial orders.Key Term: child of the deceased
A biological or adopted child.Key Term: person treated as a child of the family
Someone (not necessarily a child) for whom the deceased, in a marriage or civil partnership context or otherwise, stood in the role of parent.Key Term: dependant
Someone who was, immediately before death, being substantially maintained by the deceased.Key Term: cohabitant
Someone who lived with the deceased for at least two years immediately before death as spouse or civil partner, but without legal status.
The IPFD Act does not allow claims by siblings, parents, or wider relatives unless they meet the definition of “dependant.”
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. 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. For all other applicants, it is what is reasonable for maintenance only.
Key Term: reasonable financial provision
Provision that is objectively fair, either maintenance (for non-spouses) or potentially more generous (for spouses/civil partners), as assessed by the court.
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.
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. Claim is barred once a new marriage or partnership begins.
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.
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, minus debts and taxes).
Key Term: grant of representation
The authority—probate or letters of administration—issued to a personal representative, triggering the six-month claim period.
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 court’s permission is 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.
- 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, what might have been received on divorce).
Key Term: net estate
All property the deceased could dispose of by will, after deduction of debts, taxes and administration expenses.
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.
For spouses/civil partners, the court can approach provision as if on divorce or dissolution, starting from equality subject to adjustment. For others, only maintenance is available, not capital sharing.
Orders may attach conditions and specify how the burden should fall within the estate.
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 her a right to live in the home for life and a lump sum or property settlement, providing security and meeting needs over and above basic maintenance.
Key Examples of How the Act is Applied
- Adult children must show they have particular need, not just disappointment; estrangement alone does not prevent a claim, but conduct may reduce an award.
- Claims by cohabitants require evidence of at least two years of living together “as spouse” before death.
- Dependants must show actual financial support from the deceased—gifts, practical support, or subsistence all count, but not ordinary family affection or friendship.
Revision Tip
Memorise the statutory factors for the court’s decision and be ready to apply them to any scenario. List and apply them methodically.
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.
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 and for other applicants.
- 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, size 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 than for other applicants.
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
- reasonable financial provision
- grant of representation
- net estate