Making a dependency claim
If you were supported by someone who has died and feel the will fails to provide for you adequately, you can claim for periodic payments or a lump sum under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). The Act specifies the categories of possible claimants as:
- the surviving spouse or civil partner;
- a former spouse or former civil partner of the deceased (but not one who has remarried or formed a subsequent civil partnership);
- a cohabitee who lived with the deceased for at least two years;
- children; legitimate, illegitimate or adopted; and any other child, such as a step-child, supported by the deceased and treated as her or his own;
- others supported by the deceased such as an elderly relative, or anyone receiving regular maintenance from the deceased.
An application under I(PFD)A 1975 must be made in accordance with the Civil Procedure Rules and you must show that the deceased was ‘domiciled’ in England or Wales.
The application must be made within six months of the grant of probate. Permission outside of this time limit will only be made on application to the court in exceptional circumstances.
Orders the court can make
If your application is successful and the court does not feel that reasonable provision was made for you in the will, the court can make an order:
- for you to receive periodical payments out of the net estate of the deceased for a specified time;
- for you to receive a lump sum out of the estate;
- for the transfer to you of such property comprised in the estate;
- for the settlement of any property for your benefit (ie, an order creating a trust for you);
- an order for the purchase of property using assets of the estate, and for such property either to be transferred to you or to be held in trust for your benefit;
- varying any ante-nuptial or post-nuptial settlement (including such a settlement made by will) to which the deceased was a party, for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage;
- varying for your benefit the trusts on which the deceased’s estate is held (whether arising under the will, or the law relating to intestacy, or both);
- an order varying any settlement made:
- during the subsistence of a civil partnership formed by the deceased, or
- in anticipation of the formation of a civil partnership by the deceased, on the civil partners for the benefit of the surviving civil partner, or any child of both the civil partners, or any person who was treated by the deceased as a child of the family in relation to that civil partnership.
What will the court consider?
When assessing whether to make an order under I(PFD)A 1975, the court will first decide whether reasonable financial provision has been made for you. If it hasn’t it will consider:
- the current and future financial resources and needs of you, any other applicant under the Act, and any beneficiary of the estate of the deceased;
- any obligations and responsibilities the deceased had towards you, any other applicant or beneficiary;
- the size and nature of the net estate of the deceased;
- any physical or mental disability of you, any other applicant or beneficiary;
- any other matter, including your conduct or that of any other person, which the court considers relevant.
Where the applicant is a spouse/civil partner, the court will also look at factors relevant in divorce proceedings, such as the duration of the marriage/civil partnership, the contributions made by the parties to the family’s welfare and the applicant’s age.
Where the applicant is a child or step-child of the deceased, the court will also consider the way the applicant is being, or expected to be, educated or trained. With step-children, the court will look at how much responsibility the deceased took for the child’s maintenance, whether anyone else had a duty to maintain the child and whether the deceased, in taking responsibility for the child, knew that s/he was not the natural parent.
Where a claim is brought by a person being maintained by the deceased at the time of his death, the court will consider the extent to which, and the basis upon which, the deceased began maintaining the applicant and how long s/he had done so.