Basis of the Claim
| Author | Nasreen Pearce |
| Pages | 139-163 |
Chapter 6
Basis of the Claim
6.1 GROUNDS ON WHICH A CLAIM MAY BE MADE
There is only one ground upon which a claim under the I(PFD)A 1975 may be
made, namely that (s 1(1)):
the disposition of the deceased’s estate effected by his will or the law relating to
intestacy, or the combination of his will and that law, is not such as to make reasonable
financial provision for the applicant.
The concept of reasonable financial provision is made central to the court’s
jurisdiction to depart from the will or intestacy rules. Therefore, a claimant, who
falls into one of the categories of persons who are eligible to claim, will need to
get over several hurdles. This is so because the Act in section 2 distinguishes what
is ‘reasonable financial provision’ in relation to a spouse or civil partner of the
deceased and that which is for other claimants (see, further, below). Section 3 of
the Act also provides some guidance on the test to be applied by setting out a
range of factors that must be taken into account when determining the
reasonableness of the financial provision or lack of it made by the deceased in
their will or under the intestacy rules. Some of these factors are common to all
those who are eligible to make a claim and others only relate to a surviving spouse
and civil partner of the deceased. The Supreme Court in Ilott v The Blue Cross
and Others [2017] UKSC 17 has pointed out the danger of slipping into the error
of applying the wrong test and for courts to be alert to the danger ‘because the
two tests will by no means invariably arrive at the same answer’ (at [17]) (see the
examples of such situations by reference to the cases of Re Hancock deceased
[1998] 2 FLR 346 and Re Jennings deceased [1994] Ch 286 referred to in the
judgment). The test of reasonable provision is objective. It is not simply whether
the deceased behaved reasonably or otherwise in leaving the will they did or
choosing not to leave one.
140 A Practitioner’s Guide to Inheritance Act Claims
The s 3 factors are discussed in detail in Chapter 7, so the material in this chapter
should be read in conjunction with Chapter 7.
6.2 MEANING OF ‘REASONABLE FINANCIAL PROVISION’
The statutory definition of ‘reasonable financial provision’ is provided in
I(PFD)A 1975, s 1(2) as amended by the CPA 2004. A distinction is drawn
between what financial provision means in respect of:
(1) a claimant who is a surviving spouse/civil partner of the deceased, with
special provisions in relation to those spouses who were judicially
separated but where the separation was not continuing and thosewho fall
within I(PFD)A 1975, s 14; and
(2) all other categories of claimants.
The amendments made to the I(PFD)A 1975 by the CPA 2004 set out how the
court should deal with an application made by the surviving civil partner or former
partner of the deceased. These are set out in s 1(2)(aa). They are similar to those
which apply to married couples.
6.2.1 Surviving spouse/civil partner and judicially separated
spouse/civil partner
I(PFD)A 1975, s 1(2)(a) and (b), as amended by the Divor ce, Dissolution and
Separation Act 2020 which came into force on 6 April 2022, provides that in
respect of a surviving spouse/civil partner (except where the marriage/civil
partnership with the deceased was the subject of a judicial separation order/
decree of judicial separation and at the date of death the order/the decree was in
force and the separation was continuing), ‘reasonable financial provisi on’ means:
such financial provision as it would be reasonable in all the circumstances of the case
for a husband or wife/civil partner of the deceased to receive,whether or not that
provision is required for his or her maintenance. (emphasis added)
This provision must be read with the provisions of I(PFD)A 1975, s 3(2), under
which in relation to this category of claimants the court must have regard to
the provision that the spouse or civil partner might have been expected to receive
in the event of a divorce or dissolution of the civil partnership (see, further,
Chapter 7).
It will be observed that the section makes an exception in relation to a surviving
spouse who was separated from the deceased under a judicial separation
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