Claims under the Inheritance (Provision for Family and Dependants) Act 1975
| Author | Nasreen Pearce |
| Pages | 181-193 |
Chapter 13
Claims under the Inheritance (Provision for Family and Dependants) Act 1975
13.1 INTRODUCTION
In general, under English law, as long as the testator/testatrix has testamentary capacity when he/she makes his/her will and he/she validly complies with all the formalities relating to the making of a will, he/she has complete freedom to dispose of his/her estate as he/she chooses. On the testator’s/testatrix’s death, the personal representatives are under a duty to distribute his/her estate in accordance with the terms of his/her will. If a person has not made a will or has made an invalid will, the estate will be distributed in accordance with the intestacy rules. Where, however, the will or the laws of intestacy fail to make reasonable financial provision for the testator’s/testatrix’s dependants, a claim may be made under the I(PFD)A 1975 as amended by a certain category of dependants for financial provision, and the court is empowered to order provisions to be made out of the estate. The power includes power to bring within the estate property which has been disposed of by the deceased during his/her lifetime if the estate is insufficient to meet the claims of the beneficiaries and the applicant(s).
Hence, a claim under the I(PFD)A 1975 is not a challenge to the testator’s/ testatrix’s capacity to make the will or to non-compliance with the formalities. It is a statutory remedy available only to a limited category of dependants who qualify to make the claim provided the deceased died domiciled in England and Wales, the criteria set out in the Act are met and the claim is made within the time limit prescribed in the Act. The statutory powers given to the court under the Act, however, do not permit the court to rewrite the will. The powers may only be exercised if the conditions set out in the Act are met.
The remedies available under the I(PFD)A 1975 are included in this book for completeness so that in addition or as an alternative to challenging the will, consideration is also given to ascertaining whether the client is entitled to
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relief under the Act. This chapter, therefore, provides only an overview of the provisions under the Act.
13.2 WHO MAY APPLY?
Those who qualify to make a claim under the I(PFD)A 1975 are:
(a) the spouse (including same sex couples from 13 March 2014) or civil partner of the deceased;
(b) a former spouse or civil partner of the deceased but not one who has formed a subsequent marriage or civil partnership;
(c) a cohabitant of the deceased;
(d) a child of the deceased;
(e) any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;
(f) any person (not being a person included in the foregoing classes) who, immediately before the death of the deceased, was being maintained, whether wholly or partly, by the deceased (section 1(1) as amended).
13.2.1 Spouse or civil partner of the deceased
Pursuant to the Marriage (Same Sex Couples) Act 2013, this now includes a marriage between same sex couples. Section 11(1) provides that a marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples. The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with section 11(1) (section 11(2)). Paragraph 1(1)(a) and (b) of Part 1 of Schedule 3 provides that in existing legislation a reference to marriage is to be read as including a reference to marriage of a same sex couple and that reference to a married couple is to be read as including a reference to a same sex couple.
Paragraph 5(2) of Part 2 of Schedule 3 to the Marriage (Same Sex Couples) Act 2013 defines the meaning which applies to the expressions ‘husband’, ‘wife’, ‘widow’ and ‘widower’ as follows:
(2) The following expressions have the meanings given—
(a) ‘husband’ includes a man who is married to another man;
(b) ‘wife’ includes a woman who is married to another woman;
(c) ‘widower’ includes a man whose marriage to another man ended with the other man’s death;
(d) ‘widow’ includes a woman whose marriage to another woman ended with the other woman’s death;
and related expressions are to be construed accordingly.
Same sex and opposite couples who have entered in to a civil partnership have the same rights as those enjoyed by heterosexual couples and same sex couples who enter into a marriage under the Civil Partnership Act 2004 as amended by the Civil Partnership (Opposite-sex Couples) Regulations 2019 (SI 2019/1458). However, this situation may change in the future as, pursuant to section 15 of the Marriage (Same Sex Couples) Act 2013, the Secretary of State is under a duty to arrange for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and for a report on the outcome of the review to be produced and published.
Also included in this category are a judicially separated spouse or civil partner, a party to a voidable marriage or civil partnership which was not annulled before the deceased died and those who have entered into a polygamous marriage. The rights of a party to a void marriage are also preserved by section 25(4) of the I(PFD)A 1975, provided that the person entered into the marriage in good faith unless the marriage of the deceased and that person was dissolved or annulled during the lifetime of the deceased and the dissolution or annulment is recognised by the law of England and Wales; or that person has during the lifetime of the deceased formed a subsequent marriage or civil partnership.
13.2.2 Former spouse or civil partner
A ‘former spouse’ in section 25(1) of the I(PFD)A 1975 means a person whose marriage or civil partnership with the deceased was during the lifetime of the deceased:
(a) dissolved or annulled by a decree of divorce or a decree of nullity of marriage granted under the law of any part of the British Islands; or
(b) dissolved or annulled in any country or territory outside the British Islands by a divorce or annulment which is entitled to be recognised as valid by the law of England and Wales.
A ‘former civil partner’ in section 25(1) of the I(PFD)A 1975, as amended by the Civil Partnership Act 2004, means a person whose civil partnership with the deceased was during the lifetime of the deceased:
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(a) dissolved or annulled by an order made under the law of any part of the British...
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