20.4 Family Provision Claims under the 1975 Act
Key Takeaways
- An application under the Inheritance (Provision for Family and Dependants) Act 1975 must ordinarily be made within six months of the first grant, though the court may give permission to apply later and nothing prevents an application before any grant is extracted.
- A spouse or civil partner claims such provision as is reasonable in all the circumstances, whether or not for maintenance; every other applicant is limited to reasonable provision for maintenance, judged against the s.3 checklist at the date of the hearing.
- The divorce cross-check in s.3(2) asks what a surviving spouse or civil partner might have expected on a divorce or dissolution rather than on death.
- Orders under s.2 include periodical payments, lump sums, transfers and settlements of property, acquisition of property, and variation of nuptial settlements.
Family provision: time limit, applicants, ground and factors
The Inheritance (Provision for Family and Dependants) Act 1975 is a statutory discretion to rewrite the will or the intestacy — or the combination of the two — where it does not make reasonable financial provision for an eligible applicant. It is not an appeal against testamentary freedom; the court starts from the disposition the deceased actually made, then asks whether that disposition is reasonable.
Time limit. Section 4: an application must not, except with the permission of the court, be made after the end of six months from the date on which representation is first taken out. The same section, as amended in 2014, confirms that nothing prevents an application before any grant. Personal representatives who distribute within the six months do so at their own risk if a claim later succeeds. After six months they are generally protected if they had no notice of a claim, but the court can still extend time, so a known threatened claim should still be provided for.
Applicants. Section 1 applies where the deceased died domiciled in England and Wales and is survived by:
| s.1 class | Who |
|---|---|
| (a) | Spouse or civil partner |
| (b) | Former spouse or former civil partner who has not formed a subsequent marriage or civil partnership |
| (ba) / (1A) | A person who, for the whole two years ending with death, lived in the same household as the deceased as if they were a married couple or civil partners |
| (c) | A child of the deceased (including adult children) |
| (d) | A person treated by the deceased as a child of the family in relation to a marriage, civil partnership, or any family in which the deceased stood in the role of a parent |
| (e) | A person who was being maintained, wholly or partly, by the deceased immediately before death |
Section 1(3) tightens class (e): the deceased must have been making a substantial contribution in money or money's worth towards the applicant's reasonable needs, other than a contribution made for full valuable consideration under a commercial arrangement. A lodger paying a market rent is not a maintained person. An adult child who received irregular pocket money may also fail the substantial-contribution test, but that adult child can still apply under class (c).
Ground. For every applicant the ground is the same: the will, the intestacy, or both together, did not make reasonable financial provision. The content of that phrase then splits (s.1(2)):
- Spouse or civil partner (unless a judicial separation / separation order was in force and separation was continuing): such provision as would be reasonable in all the circumstances, whether or not required for maintenance. The divorce cross-check in s.3(2) asks what the applicant might have expected on a divorce or dissolution.
- Every other applicant: such provision as would be reasonable for the applicant's maintenance.
An adult child who is in work and has no special need therefore faces a much steeper path than a surviving spouse. Maintenance is not limited to subsistence, but it is not a wealth-equalising jurisdiction either.
Section 3 factors. On both the "is provision reasonable?" question and the "what order should we make?" question, the court must have regard to:
- the financial resources and needs the applicant has or is likely to have;
- the resources and needs of any other applicant;
- the resources and needs of any beneficiary;
- the deceased's obligations and responsibilities towards any applicant or beneficiary;
- the size and nature of the net estate;
- any physical or mental disability of an applicant or beneficiary;
- any other matter, including the conduct of the applicant or any other person.
The court takes the facts as known at the date of the hearing (s.3(5)), and it must treat earning capacity as a resource and financial obligations as a need (s.3(6)). Extra factors then layer on: for a spouse, the duration of the marriage, age, and contribution to the family; for a maintained person, the length and extent of maintenance and whether the deceased assumed responsibility.
Net estate for 1975 Act purposes is wider than the probate estate. Sections 8–9 can pull in nominated property and the deceased's severable share of jointly owned property; ss.10–13 allow anti-avoidance orders against donees of recent gifts. A client who tries to defeat a spouse claim by placing the home in joint names with a child, or by giving away cash after a diagnosis, needs that warning before the grant, not after distribution.
Orders under s.2 include periodical payments, lump sums, transfers, settlements, acquisition of property, and variation of nuptial settlements. Personal representatives' job while a claim is live is to preserve the estate, not to take sides with the residuary beneficiaries who instructed the firm unless the firm's retainer and the conflict rules clearly allow it.
A man dies domiciled in England and Wales leaving his entire estate to a friend. He is survived by his wife and by an adult employed son. Which statement about a 1975 Act claim is correct?