Powers of the Court to Make Orders
| Author | Nasreen Pearce |
| Pages | 233-269 |
Chapter 8
Powers of the Court to Make Orders
8.1 INTRODUCTION
Once the court is satisfied that th e claimant is eligible to make a claim under the
I(PFD)A 1975 and that the disposition of the deceased’s estate effected by their
will or the law of intestacy, or th e combination of their will and that law, is not
such as to make reasonable financial provision for the claimant, the court must
decide the extent and nature of the financial provision which should be provided
for the claimant.
The orders which the court may make are set out in I(PFD)A 1975, ss 2, 5, 6–11
and 16–19. The court’s powers relate not only to making financial provisions, but
also include the power to make orders for the purpose of facilitating the making
of those provisions. These specific powers empower the court to make orders for
property to be brought into the estate so that it is available for the necessary
financial provisions to be made. The Act has also been amended to include the
changes brought about as a result of the provisions of the CPA 2004 as from 5
December 2005 and the Marriage (Same Sex Couples) Act 2013. Section 2(1)(g)
has be en amended to enable the court to vary any settlement made during the
subsistence of a civil partnership formed by the deceased or in anticipation of the
formation of such a partnership. Sections 16–18 have been amended to take
account of orders that can be made in relation to maintenance agreements between
civil partners or former civil partners and following the dissolution of a civil
partnership.
This chapter deals with the powers set out in I(PFD)A 1975, ss 2, 5, 6, 7 and 16–
19. Chapter 10 deals with the orders which relate to making property available
where the estate is insu fficient to make the necessary provision or where the
deceased had disposed of property during their lifetime for the purpose of
defeating or reducing a possible claim under ss 10–13.
234 A Practitioner’s Guide to Inheritance Act Claims
I(PFD)A 1975, s 2 empowers the court to make any one or more of the following
orders:
(1) an order for the making to the applicant, out of the net estate of the
deceased, of such periodical payments and for such term as may be
specified in the order;
(2) an order for the payment to the applicant, out of that estate, of a lump
sum of such amount as may be specified;
(3) an order for the transfer to the applicant of such property comprised in
that estate as may be specified;
(4) an order for the settlement, for the benefit of the claimant, of such
property comprised in that estate as may be specified;
(5) an order for the acquisition, out of property comprised in that estate, of
such property as may be specified and f or the transfer of the property so
acquired to the applicant, or the settlement thereof for their benefit;
(6) an order varying any ante-nuptial or post-nuptial settlement (including
such a settlement made by will) made on the parties to a marriage to
which the deceased was one of the parties, the variation being 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;
(7) an order varying any settlement made:
(a) during the subsistence of a civil partnership formed by the
deceased, or
(b) in anticipation of the formation of a civil partnership by the
deceased,
(8) an order varying for the applicant’s benefit the trusts on which the
deceased’s estate is held (whether arising under the will, or the law
relating to intestacy or both).
In certain circumstances, the court may make an interim order for periodical
payments and a lump sum out of the net estate (I(PFD)A 1975, s 5). The financial
provisions to meet any interim orders may be made out of the net estate as defined
in s 25(1) including property which forms part of the net estate pursuant to orders
made under ss 8–12.
8.2 PERIODICAL PAYMENTS – I(PFD)A 1975, SECTION 2(1)(A)
An order for periodical payments must specify the term for which the order is to
run (I(PFD)A 1975, s 2(1)).
Powers of the Court to Make Orders 235
When making a periodical payment, the court may (I(PFD)A 1975, s 2(2)):
(1) specify in the order the amount to be paid;
(2) express the amount to be paid to be such sum as is equivalent to the
whole, or a specified portion, of the income of the net estate;
(3) direct that a specified part of the net estate be appropriated or set aside
for meeting periodical payments, and express the amount of such
periodical payments to be equivalent to the whole of the income of such
part of the net estate.
No larger part of the net estate than is sufficient, at the date of the order, to produce
the income required may be set aside or appropriated (I(PFD)A 1975, s 2(3)). The
power of appropriation is in addition to any power conferred by the deceased’s
will or given by the court to the personal representatives under its jurisdiction to
make consequential orders and give directions. Alternatively, the court may
provide for the amount of the periodical payments, or any of them, to be
determined in any other way as the court thinks fit (s 2(2)).
8.2.1 Commencement date
There are three possible dates from which an order for periodical payments can
commence:
(1) the date of the deceased’s death, when the right to make the claim
accrued;
(2) the date when proceedings were commenced, when the right to make the
claim was exercised;
(3) the date the order is made, when the court finally determines the merit
of the claim.
There is no rule that an order for periodical payments must be backdated to
commence from the date of the deceased’s death. I(PFD)A 1975, s 19(1) provides
that, where an order is made under s 2 then, for all purposes, including the
purposes of the enactments relating to inheritance tax, the will or the law of
intestacy, or both the will and the law relating to intestacy, as the case may be,
shall have effect and be deemed to have had effect as from the deceased’s death
subject to the provisions of the order.
The commencement date of a periodical payment order or any other order is in
the discretion of the court. In the absence of exceptional circumstances, the court
will be reluctant to backdate the order to a date earlier than the date the
proceedings were commenced. Even when backdating is considered appropriate,
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