Practitioner's Guide to Inheritance Act Claims

Nasreen Pearce is a retired circuit judge and former district judge of the Principal Registry of the High Court. She is the General Editor of 'Butterworth’s Wills, Probate and Administration Service' and 'Emergency Remedies in the Family Courts', and has also written extensively on other areas of family law and applications in the Court of Protection. She is the author of 'A Practitioner's Guide to Probate Disputes', 2nd edition (2022), also published by Wildy, Simmonds & Hill Publishing.

• Table of CasesTable of StatutesTable of Statutory InstrumentsTable of Guides and Codes of PracticeTable of International Materials1INTRODUCTION1.1Background1.2Urgent need for law reform2PROOF OF DEATH AND DOMICILE2.1Introduction2.2Proof of death2.3Domicile2.4Domicile of origin2.5Domicile of dependency2.6Domicile of choice2.6.1Residence2.6.2Intention2.6.3Burden of proof2.6.4Standard of proof2.6.5Evidence2.6.6Summary3TIME LIMITS3.1Introduction3.2Commencement of the period of 6 months3.2.1Grant ad colligenda bona3.2.2Grant pending determination of claim3.2.3Grant ad litem3.2.4Grant in common form3.2.5Successive grants3.2.6De bonis non grant3.2.7Cessate grant3.2.8 Authority to the Official Solicitor to obtain a grant: Senior Courts Act 1981, section 1163.2.9Standing search for grant3.3Can a claim be made before grant?3.3.1The position post-1 October 20143.4Applications in respect of joint property – I(PFD)A 1975, section 93.5Extension of time3.5.1Powers of the court3.5.2The relevant criteria to be applied in an application for extension of time3.5.3Merits of the claim3.5.4Delay in bringing the claim3.5.5Negotiations3.5.6Distribution of the estate3.5.7Claimant’s possible claim against third parties or solicitors3.5.8Conscious decision not to make a claim3.5.9Claimant under disability3.5.10Delay caused by application for public funding3.6Procedure3.7Burden of proof4CLAIMANTS4.1Introduction4.2Spouse of the deceased4.2.1Proof of marriage4.2.2Polygamous and potentially polygamous marriages4.2.3Void marriages4.2.4Rights of spouse to void marriage under the I(PFD)A 19754.2.5Marriage entered into in good faith4.2.6Distinction between void marriage and non-marriage4.2.7Effect of annulment of void marriage to claim under the I(PFD)A 19754.2.8Voidable marriage4.2.9Marriage with a transsexual – Gender Recognition Act 20044.2.10Separation of married couples by judicial separation order (formerly decree of judicial separation)4.3Civil partner of the deceased4.3.1Proof of civil partnership4.3.2Void civil partnership4.3.3Voidable civil partnership4.3.4Civil partnership entered into in good faith4.3.5Effect of dissolution or annulment of civil partnership4.3.6Effect of marriage overseas between same sex couples4.3.7Separation order in the case of civil partnership4.3.8Effect on claim made by surviving spouse/civil partner by the subsequent marriage/civil partnership before the claim is determined4.4Former spouse of the deceased who has not remarried4.4.1Overseas divorce and talaq4.4.2Application of I(PFD)A 1975, section 144.4.3 Restrictions imposed in matrimonial proceedings under I(PFD)A 1975, sections 15 and 15A4.5Former civil partner of the deceased4.5.1Application of I(PFD)A 1975, section 14A4.5.2Restrictions imposed in proceedings for the dissolution, etc of a civil partnership on an application under I(PFD)A 1975, section 15ZA4.6Cohabitant of the deceased4.6.1Whole of the 2 years immediately before the date when the deceased died4.6.2Living in the same household4.6.3As the husband or wife of the deceased4.6.4Same sex cohabitants post-5 December 20054.6.5Same sex cohabitants pre-5 December 20054.7Child of the deceased4.7.1Presumption of legitimacy4.7.2Legitimation4.7.3Legitimation and same sex female partners4.7.4Child of void marriage4.7.5Adopted child4.7.6Child born as a result of infertility treatment4.7.7Mistaken transfer of sperm4.7.8A child who is the subject of a parental order4.7.9Declaration of parentage, legitimacy and legitimation4.8Any person treated as a child of the family4.9Any person (not being a person included in the forEgoing paragraphs) who immediately before the death of the deceased was being maintained either wholly or partly by the deceased4.9.1Being maintained4.9.2Substantial contribution4.9.3Reasonable needs4.9.4Otherwise than for full valuable consideration pursuant to an arrangement of a commercial nature4.9.5Immediately before the death of the deceased5FORFEITURE5.1Introduction5.2Order modifying the effect of the rule5.3Three-month time limit – when time begins to run5.4Relevant factors for modifying the effect of the Act5.5Further illustration of the application of section 2(2)5.6 Does the forfeiture rule affect trusts?5.7Summary6BASIS OF THE CLAIM6.1Grounds on which a claim may be made6.2Meaning of ‘reasonable financial provision’6.2.1Surviving spouse/civil partner and judicially separated spouse/civil partner6.2.2Surviving spouses/civil partners and those who come within I(PFD)A 1975, sections 14 and 14A6.2.3Claim by surviving husband6.2.4Judicially separated spouse/civil partner and former spouse/civil partner6.2.5All other claimants6.3Meaning of ‘maintenance’6.3.1 Maintenance in relation to claimants on state benefits7MATTERS TO WHICH THE COURT IS TO HAVE REGARD7.1Introduction7.2Relevant date for consideraton of section 3 factors7.3Criteria in I(PFD)A 1975, section 37.3.1Surviving spouse/civil partner7.3.2Former spouse/civil partner of the deceased who has not remarried or formed a subsequent civil partnership, and cohabitants7.3.3Child of the deceased7.3.4Person treated as a child of the family7.3.5Any other person who was being maintained by the deceased7.4Financial resources and financial needs – I(PFD)A 1975, section 3(1)(a)–(c)7.4.1Financial resources7.4.2Financial needs7.5Deceased’s obligations and responsibilities – I(PFD)A 1975, section 3(1)(d)7.6Size and nature of the net estate – I(PFD)A 1975, section 3(1)(e)7.7Physical and mental disability of any claimant or beneficiary – I(PFD)A 1975, section 3(1)(f)7.8Any other matter including conduct – I(PFD)A 1975, section 3(1)(g)7.8.1The deceased’s reasons7.8.2Claimant’s wish to pass assets to beneficiaries of choice7.8.3Conduct7.8.4Proprietary estoppel7.8.5Constructive trust7.8.6Rule in Rochefoucauld v Boustread7.8.7Doctrine of mutual wills7.9Factors relevant to a surviving spouse, former spouse, civil partner and cohabitants7.9.1Age7.9.2Duration of marriage/civil partnership and cohabitation7.9.3Claimant’s contribution to the welfare of the family7.9.4Financial contribution7.10What the surviving spouse/civil partner might reasonably have expected to receive on divorce/dissolution – divorce comparison test7.11Factors which apply to a former spouse/civil partner or cohabitant7.11.1Matrimonial proceedings and disentitlement orders under I(PFD)A 1975, sections 15, 15ZA, 15A and 15B7.12Claim by surviving husband/cohabitant7.13Claims by children of the deceased and children of the family – I(PFD)A 1975, section 1(1)(c) and (d)7.14Claims by person maintained by the deceased – I(PFD)A 1975, section 1(1)(e)7.15Assumption of responsibility by the deceased – I(PFD)A 1975, section 3(3) and (4)8POWERS OF THE COURT TO MAKE ORDERS8.1Introduction8.2Periodical payments – I(PFD)A 1975, section 2(1)(a)8.2.1Commencement date8.2.2Setting aside and appropriation of property – I(PFD)A 1975, section 2(3)8.2.3Supplementary orders and conditions8.2.4Secured periodical payments order8.2.5Duration of periodical payments order8.3Lump sum order – I(PFD)A 1975, section 2(1)(b)8.3.1Instalment order8.3.2Variation of order8.3.3Assessing amount to be awarded8.4Transfer of property order – I(PFD)A 1975, section 2(1)(c)8.5Settlement of property order – I(PFD)A 1975, section 2(1)(c)8.6Acquisition of property order – I(PFD)A 1975, section 2(1)(e)8.7Variation of nuptial settlement – I(PFD)A 1975, section 2(1)(f) and (g)8.7.1Has there been a settlement?8.7.2How should the court exercise its discretion?8.8Consequential and supplemental orders – I(PFD)A 1975, section 2(4)8.9Interim orders – I(PFD)A 1975, section 58.9.1Conditions precedent8.9.2Matters to be considered8.9.3Orders that can be made8.9.4Personal representatives and interim orders – I(PFD)A 1975, section 20(2)8.10Injunctions8.11Variation, discharge, suspension and revival of orders – I(PFD)A 1975, section 68.11.1Who may apply?8.11.2Orders that can be made – I(PFD)A 1975, section 6(2)–(4)8.11.3Meaning of ‘relevant property’8.11.4Matters to be considered8.11.5Time limits8.11.6Commencement of the order8.12Variation and discharge of secured periodical payments orders made under Matrimonial Causes Act 1973 – I(PFD)A 1975, section 168.12.1Who may apply?8.12.2Provisions of Children Act 1989, Schedule 18.13Variation and revocation of maintenance agreements – I(PFD)A 1975, section 178.13.1Meaning of ‘maintenance agreement’8.13.2Orders that can be made8.13.3Criteria to be applied by the court8.13.4Effect of the order8.14Court’s powers in relation to applications under Matrimonial Causes Act 1973, sections 31 and 36 and CPA 2004, Schedule 5, paragraphs 60 and 73 – I(PFD)A 1975, section 188.14.1Time limit8.15Effect, duration and form of orders – I(PFD)A 1975, section 199THE NET ESTATE9.1Introduction9.2Definition – I(PFD)A 1975, Section 25(1)–(3)9.3Property which the deceased had power to dispose of by will9.4Property under general power of appointment9.5What may be deducted from the net estate?9.6Nominated property – I(PFD)A 1975, Section 8(1)9.6.1Insurance policies and pension schemes9.7Donatio mortis causa – I(PFD)A 1975, section 8(2)9.7.1What is donatio mortis causa?9.8Property held on joint tenancy – I(PFD)A 1975, section 99.8.1Time limit9.8.2Meaning of ‘property’9.8.3Severance9.8.4Circumstances in which an order will be considered9.8.5Criteria which will be applied9.8.6Facilitating the making of financial provision/and appears to be just9.8.7Meaning of ‘at the value thereof’9.9 Foreign property9.9.1Jurisdiction9.9.2 Law of succession9.9.3EU Regulation 650/201210DISPOSITIONS INTENDED TO DEFEAT FINANCIAL PROVISION10.1Introduction10.2Inter vivos disposition10.2.1Condition precedent for an order10.2.2Meaning of ‘disposition’10.2.3Full valuable consideration10.2.4Intention of defeating a claim10.2.5Matters the court will take into consideration10.2.6Orders that can be made10.2.7Donee’s right to apply10.3Contracts to leave property by will10.3.1Condition precedent for an order10.3.2Contract10.3.3Intention to defeat a claim10.3.4Full valuable consideration10.3.5Matters to be considered by the court10.3.6Orders that can be made under I(PFD)A 1975, section 1110.3.7Where money has been paid10.3.8Where money has not been paid10.3.9Position of donee who is a trustee10.3.10Restrictions on the court’s powers10.3.11Rights of persons to enforce the contract11PERSONAL REPRESENTATIVES AND TRUSTEES11.1Introduction11.2Liabilities under the I(PFD)A 197511.3Protection afforded by I(PFD)A 1975, section 2011.3.1Responsibilities and duties after proceedings have been issued11.4Trustees12PROCEDURE12.1Introduction12.2Pre-action Protocol12.3Venue12.4Claim form12.4.1Contents12.4.2Time limits12.4.3Application under I(PFD)A 1975, section 9 for severance of joint tenancy12.4.4Application under I(PFD)A 1975, sections 10 and 11 to set aside transactions made by the deceased with the intention of defeating or reducing a claim under the Act12.4.5Claimants12.4.6Defendants12.5Claimant’s witness statements/affidavit12.6Party under disability12.7Service12.8Acknowledgement of service and defendant’s evidence12.8.1Position of personal representative who is a defendant12.8.2Other defendants12.8.3Claimant’s reply12.9Interlocutory matters, directions and case management12.10Disclosure12.11Attempts/offers to settle12.11.1CPR Part 36 offer12.11.2Calderbank offers12.12Hearing12.13Endorsement of memorandum on grant12.14Drawing up and service of orders12.15Subsequent applications12.15.1Procedural guide13APPEALS13.1Introduction13.2Permission to appeal13.3Route of appeal13.4Time limits13.5Stay of execution13.6Grounds of appeal13.7Procedure13.7.1Appellant’s notice13.7.2Amendment of appeal notice13.7.3Respondent’s notice13.8Procedural tablesAppeal from a county court judge or High Court to the Court of AppealAppeal to the Supreme CourtAPPENDICESPrecedentsA1Application for a postal search of the probate records of England and Wales, Form PA1SA2Example claims to be included in the Part 8 claim formA3Witness statement by the claimant (a surviving spouse)A4Witness statement of the personal representativeA5Witness statement by a cohabitant of the deceasedA6Witness statement of an adult person treated as a child of the familyA7Draft ordersLegislationA8Inheritance (Provision for Family and Dependants) Act 1975A9Civil Procedure Rules, Part 57 – Probate and Inheritance, ExtractA10Civil Procedure Rules, Practice Direction 57 – ProbatePractice GuidanceA11ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (ACTAPS Code)Index