Making a claim under the Inheritance Act

Inheritance act claim
Whether a person dies having made a Will or intestate, a claim can be made against their estate by certain people under the Inheritance (Provision for Family and Dependants) Act 1975 as amended[1].

Claims are restricted to close family members and dependants. Paradoxically, the pool of prospective claimants is wider than those who might apply for provision during the testator’s lifetime.[2] These include:

1(1)(a) the deceased’s spouse or civil partner (including polygamous spouses[3]);

1(1)(b) the deceased’s former spouse or former civil partner (where they have not remarried or entered into another civil partnership);

1(1)(ba) a cohabitee (where they ‘lived as the Deceased’s spouse’ (1(1A)) or civil partner (1(1B)) for a minimum of two years before the Deceased died);

1(1)(c) a child of the deceased or 1(1)(d) persons the deceased treated as a child (including, under the 1975 Act, an able-bodied adult child)[4]; and

1(1)(e) any person who immediately before the death of the deceased was being maintained, wholly or partly, by the deceased.[5]

Cohabitees can bring a claim under s1(1)(ba) (two years or more cohabitation) or if not applicable, s1(1)(e) of the Act (maintenance). In contrast with other jurisdictions,[6] the English courts have narrowly construed cohabitation to mean the Deceased and survivor had a de facto (conjugal) relationship.[7] This excludes, perhaps unfairly, those who cohabited with the Deceased prior to death in order to provide care and support for no reward; unless they can establish maintenance under s1(1)(e) or the doctrine of promissory estoppel (equitable forbearance).[8]

The threshold question

In considering a claim under the Inheritance Act, the Court must first ask the threshold question: does the estate make reasonable financial provision for the applicant? This must be decided having regard to the factors contained in s3. These include:

  • the actual and foreseeable financial resources and needs of each applicant and each current beneficiary;
  • the obligations the deceased had towards each applicant and current beneficiaries;
  • the size and nature of the estate;
  • physical or mental disabilities of each applicant or beneficiary; and
  • ‘any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.’

The latter allows the Court to take a very wide range of issues into account when reaching a decision – an example might be a lawyer’s notes recording the circumstances behind the making of a Will.

There are additional s3 factors specific to the type of application such as length of cohabitation and contribution made by the applicant to the family’s welfare (cohabitees) and how maintenance continued for (s1(1)(e) claimants).

What is meant by reasonable financial provision?

Only if the Court is so satisfied that the threshold question has been met can it consider exercising its power to make an award for ‘reasonable financial provision’ under s2. To do this, it must consider what is meant by reasonable financial provision under s1(2) which involves revisiting the s3 factors.

In the case of a spouse or civil partner (if not judicially separated) or persons falling under s14A/s14B, the Court can award such financial provision as it would be reasonable for them to receive, regardless of their needs. In this respect the 1975 Act amended the 1938 Act to bring the law in line with the developing approach of the family courts.[9] However, of note, the ‘divorce fiction’[10] is just one of the s3 factors, all of which should be considered[11]. Like divorce, the courts may depart from an equal split where it is appropriate (for example, short marriage cases)[12]. Further, the needs of other beneficiaries may outweigh those of the claimant.[13]

In all other cases (including cohabitees), reasonable financial provision means such provision as is reasonable for the applicant’s ‘maintenance’ (Section 2(b)). Maintenance is not defined by the Act: case law holds that it means the amount required to discharge the cost of his daily living,[14] neither at a luxurious nor poverty stricken level.[15]

The Courts have shown themselves to be flexible in deciding what maintenance is: for example, in Lewis v Warner[16] the wealthy claimant was granted the right to buy his Deceased partner’s property for full value, because it was suitable for his needs. The case demonstrates that ‘reasonable provision’ does not always mean financial provision.

Applying the Inheritance Act

In Re Coventry, Oliver J stated:

The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position. [17]

The importance of such restriction is twofold. First, allowing the Court complete discretion to do what they deem fair in individual cases would create unpredictability and inconsistency, and the associated expense and stress[18]. Legal certainty is recognised as a principle central to the rule of law. [19] This holds that ‘the effect of a legal provision must be clear and predictable to those persons who are subject to it’[20]. Secondly, any extension of the Court’s powers is a limitation on the principle of testamentary freedom.[21]

However, as noted by Black LJ when Ilott was first heard in the Court of Appeal[22], no guidance is provided about the relative importance that should be attached to each of the s3 criteria. Consequently, a value judgement must be made. This is especially difficult in the context of adult children.

Elsewhere in the law, parents do not need to provide for children ‘who are under no disability and whose maintenance and education is secure’[23] unless there are exceptional circumstances.[24] Similar restrictions in the original 1938 Inheritance Act [25] were relaxed in favour of ‘leaving the court to distinguish between the deserving and the undeserving’[26] of reasonable maintenance.

The lack of guidance and consequent judicial latitude in applying s3 factors flies in the face of legal certainty and makes it more difficult for lawyers to advise clients on the merits of their claims. The lack of certainty is also likely to be contributing to the growing number of claims reaching Court.

If someone has died and you believe they should have provided for you financially (whether or not there is a Will), get in touch with us for advice.

Sources:

[1] Inheritance and Trustees’ Powers Act 2014; Her Honour Nasreen Pearce, ‘The Inheritance and Trustees’ Powers Act 2014: changes to intestacy rules and claims for family provision on death’ (Family Law, 2014) Fam Law 1591.

[2] Brian Sloan, ‘The concept of coupledom in succession law’ (Cambridge Law Journal, 2017) 70 [623–648]

[3] Official Solicitor v Yemoh [2010] EWHC 3727 (Ch).

[4] Rebecca Probert, ‘Family and Other Animals’ (Law Quarterly Review, 2017) L.Q.R. 550.

[5] Inheritance (Provision for Family and Dependants) Act 1975, s 1.

[6] E.g. Property (Relationships) Act 1984, s 5(1) (NSW).

[7] Swetenham v Walkley [2014] W.T.L.R. 845

[8] Richard Hanke, ‘Estoppel’ (Practical Law Practice Notes)

[9] Ilott (Respondent) v The Blue Cross and others (Appellants) [2017] UKSC 17 [13] (Lord Hughes).

[10] Per Aston v Aston [2007] W.T.L.R. 1349.

[11] Constance McDonnell, ‘Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (Practical Law Insight)

[12] Lilleyman v Lilleyman [2012] EWHC 1056; Fielden & Graham v Cunliffe [2005] EWCA Civ 1508

[13] Wooldridge v Wooldridge [2016] 2 WLUK 334; Clarissa Coleman, Christopher Noel & Natasha Winter, ‘Wooldridge v Wooldridge: claims for further financial provision in “luxurious lifestyle” cases’ (Private Client Business, 2016) P.C.B. 122.

[14] Re Dennis, deceased [1981] 2 All ER 140 [145-146] (Browne-Wilkinson J).

[15] Ilott above [2017] UKSC 17 [15].

[16] Lewis v Warner [2017] EWCA Civ 2182.

[17] Re Oliver [1980] Ch 461, 475.

[18] Law Com No.331 para 1.20.

[19] Case C-158/07 Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-8507 [67]; Halsbury’s Laws of England (Volume 47A (2014)) para 289; R v Rimmington
(Appellant) (On Appeal from the Court of
 Appeal (Criminal Division)) and R v Goldstein (Appellant) (On Appeal from the Court of Appeal (Criminal Division)), 27 October 2005 House of Lords) [30 – 32].

[20] Joined Cases 212/80 to 217/80 Amministrazione delle finanze dello Stato v Salumi [1981] ECR 2735 [10]; Halsbury’s Laws of England (Volume 47A (2014)) para 289.

[21] Law Com No.331 para 1.21.

[22] [2011] EWCA Civ 346; [2011] 2 FCR 1, para 88.

[23] Lilford (Lord) v Glynn [1979] 1 All ER 441, [1979] 1 WLR 78, 9 Fam Law 81, 122 Sol Jo 433.

[24] Re N (A Child) (Financial Provision: Dependency) [2009] EWHC 11 (Fam); [2009] 1 W.L.R. 1621.

[25] Rebecca Probert, ‘Family and Other Animals’ (above)

[26] Ilott above [2017] UKSC 17 at [58].

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