Overview

This new edition is a comprehensive, accessible, and practical guide to the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. It provides up-to-date guidance on the law, practice, and procedure on the ever-increasing applications for financial provisions under the Act. The provisions of the Act and its interpretation by the courts are set out and explained by providing summaries of relevant cases. The book also contains a step-by-step guide to the preparation of a case under the Act and the practice and procedure to process an application through the courts. The introduction provides an overview of the background of the legislation, the amendments that have been made, and the issues that still need to be resolved, particularly in relation to cohabitants. Each chapter comprehensively deals with information on the preconditions and time limits to prepare for an application to be made under the Act. These include issues such as domicile, limitation of time, eligibility, grounds for making a claim and the necessary factors to establish a claim. The book also provides useful information on claims based on constructive trusts and proprietary estoppel which so frequently arise in farming claims and claims made by cohabitants and other family members. The new edition sets out the challenges of cryptocurrencies, crypto assets, and currency. It also emphasises the importance of engaging in negotiations and mediation as part of the pre-proceedings steps to be taken, and the adverse impact on costs of failure to do so or frustrating attempts made to resolve the issues by agreement. The Appendices contain the 1975 Act, as amended, various Rules and Practice Directions, ACTAPS Practice Guidance, as well as precedents which provide a checklist of the information and evidence necessary to establish a case for each category of eligible claimant.

Full Product Details

Author:   Nasreen Pearce
Publisher:   Wildy, Simmonds and Hill Publishing
Imprint:   Wildy, Simmonds and Hill Publishing
Edition:   4th Revised edition
ISBN:  

9780854902989

ISBN 10:   0854902988
Pages:   500
Publication Date:   31 May 2023
Audience:   Professional and scholarly ,  Professional & Vocational
Format:   Hardback
Publisher's Status:   Forthcoming
Availability:   Not yet available  
This item is yet to be released. You can pre-order this item and we will dispatch it to you upon its release.

Table of Contents

Table of Cases Table of Statutes Table of Statutory Instruments Table of Guides and Codes of Practice Table of International Materials 1 INTRODUCTION 1.1 Background 1.2 Urgent need for law reform 2 PROOF OF DEATH AND DOMICILE 2.1 Introduction 2.2 Proof of death 2.3 Domicile 2.4 Domicile of origin 2.5 Domicile of dependency 2.6 Domicile of choice 2.6.1 Residence 2.6.2 Intention 2.6.3 Burden of proof 2.6.4 Standard of proof 2.6.5 Evidence 2.6.6 Summary 3 TIME LIMITS 3.1 Introduction 3.2 Commencement of the period of 6 months 3.2.1 Grant ad colligenda bona 3.2.2 Grant pending determination of claim 3.2.3 Grant ad litem 3.2.4 Grant in common form 3.2.5 Successive grants 3.2.6 De bonis non grant 3.2.7 Cessate grant 3.2.8 Authority to the Official Solicitor to obtain a grant: Senior Courts Act 1981, section 116 3.2.9 Standing search for grant 3.3 Can a claim be made before grant? 3.3.1 The position post-1 October 2014 3.4 Applications in respect of joint property - I(PFD)A 1975, section 9 3.5 Extension of time 3.5.1 Powers of the court 3.5.2 The relevant criteria to be applied in an application for extension of time 3.5.3 Merits of the claim 3.5.4 Delay in bringing the claim 3.5.5 Negotiations 3.5.6 Distribution of the estate 3.5.7 Claimant's possible claim against third parties or solicitors 3.5.8 Conscious decision not to make a claim 3.5.9 Claimant under disability 3.5.10 Delay caused by application for public funding 3.6 Procedure 3.7 Burden of proof 4 CLAIMANTS 4.1 Introduction 4.2 Spouse of the deceased 4.2.1 Proof of marriage 4.2.2 Polygamous and potentially polygamous marriages 4.2.3 Void marriages 4.2.4 Rights of spouse to void marriage under the I(PFD)A 1975 4.2.5 Marriage entered into in good faith 4.2.6 Distinction between void marriage and non-marriage 4.2.7 Effect of annulment of void marriage to claim under the I(PFD)A 1975 4.2.8 Voidable marriage 4.2.9 Marriage with a transsexual - Gender Recognition Act 2004 4.2.10 Separation of married couples by judicial separation order (formerly decree of judicial separation) 4.3 Civil partner of the deceased 4.3.1 Proof of civil partnership 4.3.2 Void civil partnership 4.3.3 Voidable civil partnership 4.3.4 Civil partnership entered into in good faith 4.3.5 Effect of dissolution or annulment of civil partnership 4.3.6 Effect of marriage overseas between same sex couples 4.3.7 Separation order in the case of civil partnership 4.3.8 Effect on claim made by surviving spouse/civil partner by the subsequent marriage/civil partnership before the claim is determined 4.4 Former spouse of the deceased who has not remarried 4.4.1 Overseas divorce and talaq 4.4.2 Application of I(PFD)A 1975, section 14 4.4.3 Restrictions imposed in matrimonial proceedings under I(PFD)A 1975, sections 15 and 15A 4.5 Former civil partner of the deceased 4.5.1 Application of I(PFD)A 1975, section 14A 4.5.2 Restrictions imposed in proceedings for the dissolution, etc of a civil partnership on an application under I(PFD)A 1975, section 15ZA 4.6 Cohabitant of the deceased 4.6.1 Whole of the 2 years immediately before the date when the deceased died 4.6.2 Living in the same household 4.6.3 As the husband or wife of the deceased 4.6.4 Same sex cohabitants post-5 December 2005 4.6.5 Same sex cohabitants pre-5 December 2005 4.7 Child of the deceased 4.7.1 Presumption of legitimacy 4.7.2 Legitimation 4.7.3 Legitimation and same sex female partners 4.7.4 Child of void marriage 4.7.5 Adopted child 4.7.6 Child born as a result of infertility treatment 4.7.7 Mistaken transfer of sperm 4.7.8 A child who is the subject of a parental order 4.7.9 Declaration of parentage, legitimacy and legitimation 4.8 Any person treated as a child of the family 4.9 Any 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 4.9.1 Being maintained 4.9.2 Substantial contribution 4.9.3 Reasonable needs 4.9.4 Otherwise than for full valuable consideration pursuant to an arrangement of a commercial nature 4.9.5 Immediately before the death of the deceased 5 FORFEITURE 5.1 Introduction 5.2 Order modifying the effect of the rule 5.3 Three-month time limit - when time begins to run 5.4 Relevant factors for modifying the effect of the Act 5.5 Further illustration of the application of section 2(2) 5.6 Does the forfeiture rule affect trusts? 5.7 Summary 6 BASIS OF THE CLAIM 6.1 Grounds on which a claim may be made 6.2 Meaning of 'reasonable financial provision' 6.2.1 Surviving spouse/civil partner and judicially separated spouse/civil partner 6.2.2 Surviving spouses/civil partners and those who come within I(PFD)A 1975, sections 14 and 14A 6.2.3 Claim by surviving husband 6.2.4 Judicially separated spouse/civil partner and former spouse/civil partner 6.2.5 All other claimants 6.3 Meaning of 'maintenance' 6.3.1 Maintenance in relation to claimants on state benefits 7 MATTERS TO WHICH THE COURT IS TO HAVE REGARD 7.1 Introduction 7.2 Relevant date for consideraton of section 3 factors 7.3 Criteria in I(PFD)A 1975, section 3 7.3.1 Surviving spouse/civil partner 7.3.2 Former spouse/civil partner of the deceased who has not remarried or formed a subsequent civil partnership, and cohabitants 7.3.3 Child of the deceased 7.3.4 Person treated as a child of the family 7.3.5 Any other person who was being maintained by the deceased 7.4 Financial resources and financial needs - I(PFD)A 1975, section 3(1)(a)-(c) 7.4.1 Financial resources 7.4.2 Financial needs 7.5 Deceased's obligations and responsibilities - I(PFD)A 1975, section 3(1)(d) 7.6 Size and nature of the net estate - I(PFD)A 1975, section 3(1)(e) 7.7 Physical and mental disability of any claimant or beneficiary - I(PFD)A 1975, section 3(1)(f) 7.8 Any other matter including conduct - I(PFD)A 1975, section 3(1)(g) 7.8.1 The deceased's reasons 7.8.2 Claimant's wish to pass assets to beneficiaries of choice 7.8.3 Conduct 7.8.4 Proprietary estoppel 7.8.5 Constructive trust 7.8.6 Rule in Rochefoucauld v Boustread 7.8.7 Doctrine of mutual wills 7.9 Factors relevant to a surviving spouse, former spouse, civil partner and cohabitants 7.9.1 Age 7.9.2 Duration of marriage/civil partnership and cohabitation 7.9.3 Claimant's contribution to the welfare of the family 7.9.4 Financial contribution 7.10 What the surviving spouse/civil partner might reasonably have expected to receive on divorce/dissolution - divorce comparison test 7.11 Factors which apply to a former spouse/civil partner or cohabitant 7.11.1 Matrimonial proceedings and disentitlement orders under I(PFD)A 1975, sections 15, 15ZA, 15A and 15B 7.12 Claim by surviving husband/cohabitant 7.13 Claims by children of the deceased and children of the family - I(PFD)A 1975, section 1(1)(c) and (d) 7.14 Claims by person maintained by the deceased - I(PFD)A 1975, section 1(1)(e) 7.15 Assumption of responsibility by the deceased - I(PFD)A 1975, section 3(3) and (4) 8 POWERS OF THE COURT TO MAKE ORDERS 8.1 Introduction 8.2 Periodical payments - I(PFD)A 1975, section 2(1)(a) 8.2.1 Commencement date 8.2.2 Setting aside and appropriation of property - I(PFD)A 1975, section 2(3) 8.2.3 Supplementary orders and conditions 8.2.4 Secured periodical payments order 8.2.5 Duration of periodical payments order 8.3 Lump sum order - I(PFD)A 1975, section 2(1)(b) 8.3.1 Instalment order 8.3.2 Variation of order 8.3.3 Assessing amount to be awarded 8.4 Transfer of property order - I(PFD)A 1975, section 2(1)(c) 8.5 Settlement of property order - I(PFD)A 1975, section 2(1)(c) 8.6 Acquisition of property order - I(PFD)A 1975, section 2(1)(e) 8.7 Variation of nuptial settlement - I(PFD)A 1975, section 2(1)(f) and (g) 8.7.1 Has there been a settlement? 8.7.2 How should the court exercise its discretion? 8.8 Consequential and supplemental orders - I(PFD)A 1975, section 2(4) 8.9 Interim orders - I(PFD)A 1975, section 5 8.9.1 Conditions precedent 8.9.2 Matters to be considered 8.9.3 Orders that can be made 8.9.4 Personal representatives and interim orders - I(PFD)A 1975, section 20(2) 8.10 Injunctions 8.11 Variation, discharge, suspension and revival of orders - I(PFD)A 1975, section 6 8.11.1 Who may apply? 8.11.2 Orders that can be made - I(PFD)A 1975, section 6(2)-(4) 8.11.3 Meaning of 'relevant property' 8.11.4 Matters to be considered 8.11.5 Time limits 8.11.6 Commencement of the order 8.12 Variation and discharge of secured periodical payments orders made under Matrimonial Causes Act 1973 - I(PFD)A 1975, section 16 8.12.1 Who may apply? 8.12.2 Provisions of Children Act 1989, Schedule 1 8.13 Variation and revocation of maintenance agreements - I(PFD)A 1975, section 17 8.13.1 Meaning of 'maintenance agreement' 8.13.2 Orders that can be made 8.13.3 Criteria to be applied by the court 8.13.4 Effect of the order 8.14 Court'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 8.14.1 Time limit 8.15 Effect, duration and form of orders - I(PFD)A 1975, section 19 9 THE NET ESTATE 9.1 Introduction 9.2 Definition - I(PFD)A 1975, Section 25(1)-(3) 9.3 Property which the deceased had power to dispose of by will 9.4 Property under general power of appointment 9.5 What may be deducted from the net estate? 9.6 Nominated property - I(PFD)A 1975, Section 8(1) 9.6.1 Insurance policies and pension schemes 9.7 Donatio mortis causa - I(PFD)A 1975, section 8(2) 9.7.1 What is donatio mortis causa? 9.8 Property held on joint tenancy - I(PFD)A 1975, section 9 9.8.1 Time limit 9.8.2 Meaning of 'property' 9.8.3 Severance 9.8.4 Circumstances in which an order will be considered 9.8.5 Criteria which will be applied 9.8.6 Facilitating the making of financial provision/and appears to be just 9.8.7 Meaning of 'at the value thereof' 9.9 Foreign property 9.9.1 Jurisdiction 9.9.2 Law of succession 9.9.3 EU Regulation 650/2012 10 DISPOSITIONS INTENDED TO DEFEAT FINANCIAL PROVISION 10.1 Introduction 10.2 Inter vivos disposition 10.2.1 Condition precedent for an order 10.2.2 Meaning of 'disposition' 10.2.3 Full valuable consideration 10.2.4 Intention of defeating a claim 10.2.5 Matters the court will take into consideration 10.2.6 Orders that can be made 10.2.7 Donee's right to apply 10.3 Contracts to leave property by will 10.3.1 Condition precedent for an order 10.3.2 Contract 10.3.3 Intention to defeat a claim 10.3.4 Full valuable consideration 10.3.5 Matters to be considered by the court 10.3.6 Orders that can be made under I(PFD)A 1975, section 11 10.3.7 Where money has been paid 10.3.8 Where money has not been paid 10.3.9 Position of donee who is a trustee 10.3.10 Restrictions on the court's powers 10.3.11 Rights of persons to enforce the contract 11 PERSONAL REPRESENTATIVES AND TRUSTEES 11.1 Introduction 11.2 Liabilities under the I(PFD)A 1975 11.3 Protection afforded by I(PFD)A 1975, section 20 11.3.1 Responsibilities and duties after proceedings have been issued 11.4 Trustees 12 PROCEDURE 12.1 Introduction 12.2 Pre-action Protocol 12.3 Venue 12.4 Claim form 12.4.1 Contents 12.4.2 Time limits 12.4.3 Application under I(PFD)A 1975, section 9 for severance of joint tenancy 12.4.4 Application 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 12.4.5 Claimants 12.4.6 Defendants 12.5 Claimant's witness statements/affidavit 12.6 Party under disability 12.7 Service 12.8 Acknowledgement of service and defendant's evidence 12.8.1 Position of personal representative who is a defendant 12.8.2 Other defendants 12.8.3 Claimant's reply 12.9 Interlocutory matters, directions and case management 12.10 Disclosure 12.11 Attempts/offers to settle 12.11.1 CPR Part 36 offer 12.11.2 Calderbank offers 12.12 Hearing 12.13 Endorsement of memorandum on grant 12.14 Drawing up and service of orders 12.15 Subsequent applications 12.15.1 Procedural guide 13 APPEALS 13.1 Introduction 13.2 Permission to appeal 13.3 Route of appeal 13.4 Time limits 13.5 Stay of execution 13.6 Grounds of appeal 13.7 Procedure 13.7.1 Appellant's notice 13.7.2 Amendment of appeal notice 13.7.3 Respondent's notice 13.8 Procedural tables Appeal from a county court judge or High Court to the Court of Appeal Appeal to the Supreme Court APPENDICES Precedents A1 Application for a postal search of the probate records of England and Wales, Form PA1S A2 Example claims to be included in the Part 8 claim form A3 Witness statement by the claimant (a surviving spouse) A4 Witness statement of the personal representative A5 Witness statement by a cohabitant of the deceased A6 Witness statement of an adult person treated as a child of the family A7 Draft orders Legislation A8 Inheritance (Provision for Family and Dependants) Act 1975 A9 Civil Procedure Rules, Part 57 - Probate and Inheritance, Extract A10 Civil Procedure Rules, Practice Direction 57 - Probate Practice Guidance A11 ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (ACTAPS Code) Index

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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.

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