A 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 Cases
Table of Statutes
Table of Statutory Instruments
Table of Guides and Codes of Practice
Table of International Materials
1INTRODUCTION
1.1Background
1.2Urgent need for law reform
2PROOF OF DEATH AND DOMICILE
2.1Introduction
2.2Proof of death
2.3Domicile
2.4Domicile of origin
2.5Domicile of dependency
2.6Domicile of choice
2.6.1Residence
2.6.2Intention
2.6.3Burden of proof
2.6.4Standard of proof
2.6.5Evidence
2.6.6Summary
3TIME LIMITS
3.1Introduction
3.2Commencement of the period of 6 months
3.2.1Grant ad colligenda bona
3.2.2Grant pending determination of claim
3.2.3Grant ad litem
3.2.4Grant in common form
3.2.5Successive grants
3.2.6De bonis non grant
3.2.7Cessate grant
3.2.8 Authority to the Official Solicitor to obtain a grant: Senior Courts Act 1981, section 116
3.2.9Standing search for grant
3.3Can a claim be made before grant?
3.3.1The position post-1 October 2014
3.4Applications in respect of joint property – I(PFD)A 1975, section 9
3.5Extension of time
3.5.1Powers of the court
3.5.2The relevant criteria to be applied in an application for extension of time
3.5.3Merits of the claim
3.5.4Delay in bringing the claim
3.5.5Negotiations
3.5.6Distribution of the estate
3.5.7Claimant’s possible claim against third parties or solicitors
3.5.8Conscious decision not to make a claim
3.5.9Claimant under disability
3.5.10Delay caused by application for public funding
3.6Procedure
3.7Burden of proof
4CLAIMANTS
4.1Introduction
4.2Spouse of the deceased
4.2.1Proof of marriage
4.2.2Polygamous and potentially polygamous marriages
4.2.3Void marriages
4.2.4Rights of spouse to void marriage under the I(PFD)A 1975
4.2.5Marriage entered into in good faith
4.2.6Distinction between void marriage and non-marriage
4.2.7Effect of annulment of void marriage to claim under the I(PFD)A 1975
4.2.8Voidable marriage
4.2.9Marriage with a transsexual – Gender Recognition Act 2004
4.2.10Separation of married couples by judicial separation order (formerly decree of judicial separation)
4.3Civil partner of the deceased
4.3.1Proof of civil partnership
4.3.2Void civil partnership
4.3.3Voidable civil partnership
4.3.4Civil partnership entered into in good faith
4.3.5Effect of dissolution or annulment of civil partnership
4.3.6Effect of marriage overseas between same sex couples
4.3.7Separation order in the case of civil partnership
4.3.8Effect on claim made by surviving spouse/civil partner by the subsequent marriage/civil partnership before the claim is determined
4.4Former spouse of the deceased who has not remarried
4.4.1Overseas divorce and talaq
4.4.2Application of I(PFD)A 1975, section 14
4.4.3 Restrictions imposed in matrimonial proceedings under I(PFD)A 1975, sections 15 and 15A
4.5Former civil partner of the deceased
4.5.1Application of I(PFD)A 1975, section 14A
4.5.2Restrictions imposed in proceedings for the dissolution, etc of a civil partnership on an application under I(PFD)A 1975, section 15ZA
4.6Cohabitant of the deceased
4.6.1Whole of the 2 years immediately before the date when the deceased died
4.6.2Living in the same household
4.6.3As the husband or wife of the deceased
4.6.4Same sex cohabitants post-5 December 2005
4.6.5Same sex cohabitants pre-5 December 2005
4.7Child of the deceased
4.7.1Presumption of legitimacy
4.7.2Legitimation
4.7.3Legitimation and same sex female partners
4.7.4Child of void marriage
4.7.5Adopted child
4.7.6Child born as a result of infertility treatment
4.7.7Mistaken transfer of sperm
4.7.8A child who is the subject of a parental order
4.7.9Declaration of parentage, legitimacy and legitimation
4.8Any person treated as a child of the family
4.9Any 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 deceased
4.9.1Being maintained
4.9.2Substantial contribution
4.9.3Reasonable needs
4.9.4Otherwise than for full valuable consideration pursuant to an arrangement of a commercial nature
4.9.5Immediately before the death of the deceased
5FORFEITURE
5.1Introduction
5.2Order modifying the effect of the rule
5.3Three-month time limit – when time begins to run
5.4Relevant factors for modifying the effect of the Act
5.5Further illustration of the application of section 2(2)
5.6 Does the forfeiture rule affect trusts?
5.7Summary
6BASIS OF THE CLAIM
6.1Grounds on which a claim may be made
6.2Meaning of ‘reasonable financial provision’
6.2.1Surviving spouse/civil partner and judicially separated spouse/civil partner
6.2.2Surviving spouses/civil partners and those who come within I(PFD)A 1975, sections 14 and 14A
6.2.3Claim by surviving husband
6.2.4Judicially separated spouse/civil partner and former spouse/civil partner
6.2.5All other claimants
6.3Meaning of ‘maintenance’
6.3.1 Maintenance in relation to claimants on state benefits
7MATTERS TO WHICH THE COURT IS TO HAVE REGARD
7.1Introduction
7.2Relevant date for consideraton of section 3 factors
7.3Criteria in I(PFD)A 1975, section 3
7.3.1Surviving spouse/civil partner
7.3.2Former spouse/civil partner of the deceased who has not remarried or formed a subsequent civil partnership, and cohabitants
7.3.3Child of the deceased
7.3.4Person treated as a child of the family
7.3.5Any other person who was being maintained by the deceased
7.4Financial resources and financial needs – I(PFD)A 1975,
section 3(1)(a)–(c)
7.4.1Financial resources
7.4.2Financial needs
7.5Deceased’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 reasons
7.8.2Claimant’s wish to pass assets to beneficiaries of choice
7.8.3Conduct
7.8.4Proprietary estoppel
7.8.5Constructive trust
7.8.6Rule in Rochefoucauld v Boustread
7.8.7Doctrine of mutual wills
7.9Factors relevant to a surviving spouse, former spouse, civil partner and cohabitants
7.9.1Age
7.9.2Duration of marriage/civil partnership and cohabitation
7.9.3Claimant’s contribution to the welfare of the family
7.9.4Financial contribution
7.10What the surviving spouse/civil partner might reasonably have expected to receive on divorce/dissolution – divorce comparison test
7.11Factors which apply to a former spouse/civil partner or cohabitant
7.11.1Matrimonial proceedings and disentitlement orders under I(PFD)A 1975, sections 15, 15ZA, 15A and 15B
7.12Claim by surviving husband/cohabitant
7.13Claims 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 ORDERS
8.1Introduction
8.2Periodical payments – I(PFD)A 1975, section 2(1)(a)
8.2.1Commencement date
8.2.2Setting aside and appropriation of property – I(PFD)A 1975, section 2(3)
8.2.3Supplementary orders and conditions
8.2.4Secured periodical payments order
8.2.5Duration of periodical payments order
8.3Lump sum order – I(PFD)A 1975, section 2(1)(b)
8.3.1Instalment order
8.3.2Variation of order
8.3.3Assessing amount to be awarded
8.4Transfer 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 5
8.9.1Conditions precedent
8.9.2Matters to be considered
8.9.3Orders that can be made
8.9.4Personal representatives and interim orders – I(PFD)A 1975, section 20(2)
8.10Injunctions
8.11Variation, discharge, suspension and revival of orders – I(PFD)A 1975, section 6
8.11.1Who 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 considered
8.11.5Time limits
8.11.6Commencement of the order
8.12Variation and discharge of secured periodical payments orders made under Matrimonial Causes Act 1973 – I(PFD)A 1975, section 16
8.12.1Who may apply?
8.12.2Provisions of Children Act 1989, Schedule 1
8.13Variation and revocation of maintenance agreements – I(PFD)A 1975, section 17
8.13.1Meaning of ‘maintenance agreement’
8.13.2Orders that can be made
8.13.3Criteria to be applied by the court
8.13.4Effect of the order
8.14Court’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 18
8.14.1Time limit
8.15Effect, duration and form of orders – I(PFD)A 1975, section 19
9THE NET ESTATE
9.1Introduction
9.2Definition – I(PFD)A 1975, Section 25(1)–(3)
9.3Property which the deceased had power to dispose of by will
9.4Property under general power of appointment
9.5What may be deducted from the net estate?
9.6Nominated property – I(PFD)A 1975, Section 8(1)
9.6.1Insurance policies and pension schemes
9.7Donatio 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 9
9.8.1Time limit
9.8.2Meaning of ‘property’
9.8.3Severance
9.8.4Circumstances in which an order will be considered
9.8.5Criteria which will be applied
9.8.6Facilitating the making of financial provision/and appears to
be just
9.8.7Meaning of ‘at the value thereof’
9.9 Foreign property
9.9.1Jurisdiction
9.9.2 Law of succession
9.9.3EU Regulation 650/2012
10DISPOSITIONS INTENDED TO DEFEAT FINANCIAL PROVISION
10.1Introduction
10.2Inter vivos disposition
10.2.1Condition precedent for an order
10.2.2Meaning of ‘disposition’
10.2.3Full valuable consideration
10.2.4Intention of defeating a claim
10.2.5Matters the court will take into consideration
10.2.6Orders that can be made
10.2.7Donee’s right to apply
10.3Contracts to leave property by will
10.3.1Condition precedent for an order
10.3.2Contract
10.3.3Intention to defeat a claim
10.3.4Full valuable consideration
10.3.5Matters to be considered by the court
10.3.6Orders that can be made under I(PFD)A 1975, section 11
10.3.7Where money has been paid
10.3.8Where money has not been paid
10.3.9Position of donee who is a trustee
10.3.10Restrictions on the court’s powers
10.3.11Rights of persons to enforce the contract
11PERSONAL REPRESENTATIVES AND TRUSTEES
11.1Introduction
11.2Liabilities under the I(PFD)A 1975
11.3Protection afforded by I(PFD)A 1975, section 20
11.3.1Responsibilities and duties after proceedings have been issued
11.4Trustees
12PROCEDURE
12.1Introduction
12.2Pre-action Protocol
12.3Venue
12.4Claim form
12.4.1Contents
12.4.2Time limits
12.4.3Application under I(PFD)A 1975, section 9 for severance of joint tenancy
12.4.4Application 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 Act
12.4.5Claimants
12.4.6Defendants
12.5Claimant’s witness statements/affidavit
12.6Party under disability
12.7Service
12.8Acknowledgement of service and defendant’s evidence
12.8.1Position of personal representative who is a defendant
12.8.2Other defendants
12.8.3Claimant’s reply
12.9Interlocutory matters, directions and case management
12.10Disclosure
12.11Attempts/offers to settle
12.11.1CPR Part 36 offer
12.11.2Calderbank offers
12.12Hearing
12.13Endorsement of memorandum on grant
12.14Drawing up and service of orders
12.15Subsequent applications
12.15.1Procedural guide
13APPEALS
13.1Introduction
13.2Permission to appeal
13.3Route of appeal
13.4Time limits
13.5Stay of execution
13.6Grounds of appeal
13.7Procedure
13.7.1Appellant’s notice
13.7.2Amendment of appeal notice
13.7.3Respondent’s notice
13.8Procedural tables
Appeal from a county court judge or High Court to the
Court of Appeal
Appeal to the Supreme Court
APPENDICES
Precedents
A1Application for a postal search of the probate records of England and Wales, Form PA1S
A2Example claims to be included in the Part 8 claim form
A3Witness statement by the claimant (a surviving spouse)
A4Witness statement of the personal representative
A5Witness statement by a cohabitant of the deceased
A6Witness statement of an adult person treated as a child of the family
A7Draft orders

Legislation
A8Inheritance (Provision for Family and Dependants) Act 1975
A9Civil Procedure Rules, Part 57 – Probate and Inheritance, Extract
A10Civil Procedure Rules, Practice Direction 57 – Probate

Practice Guidance
A11ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (ACTAPS Code)

Index