The I(PFD)A 1975 came into force on the 1st April 1976 to replace and update the Inheritance (Family Provision) Act 1938 and sections 26–28 Matrimonial Causes Act 1965. Whilst the I(PFD)A 1975 applies only in England and Wales, legislation in neighbouring jurisdictions in the UK have adopted similar provisions.
The I(PFD)A 1975 provides a mechanism which eligible claimants can seek ‘reasonable financial provision’ from a deceased’s estate, whether it is subject to a Will or falls under the Intestacy Rules. What this mean is that certain individuals, who were maintained by the deceased, may be eligible to bring a claim if they believe that the deceased’s Will or the Intestacy Rules do not adequately provide for them.
However, in order to be eligible to pursue a claim pursuant to the I(PFD)A 1975, a prospective claimant must be able to demonstrate that they fall within the relevant class as set out in I(PFD)A 1975, s 1(1) this includes:
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The spouse or civil partner of the deceased;
The burden rests with a claimant to prove their marital or civil partnership status for the purposes of any claim. Ordinarily, exhibiting a marriage certificate or civil partnership document to the applicant’s evidence will suffice this requirement.
Further advice may be required in circumstances where the marriage was foreign, religious or void marriage.
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A former spouse or former civil partner of the deceased;
In cases where the deceased passes away shortly after a divorce or dissolution, the I(PFD)A 1975 provides a discretion for the court to effectively treat the former spouse as though there had been no divorce or dissolution.
I(PFD)A 1975, s 14 provides that the court may exercise its discretion where the deceased died within 12 months from the date on which a marriage/ civil partnership was brough to an end, be it by Decree Absolute, Final Order or Decree of Nullity.
Specifically, s 14 provides the circumstances that the court will consider: –
(a) application for a financial provision order under MCA 1973, s 23 or a property adjustment order under MCA 1973, s 24 has not been made by the other party to that marriage; or
(b) such an application has been made but the proceedings thereon have not been determined at the time of the death of the deceased.
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A cohabitee;
If the deceased died on or after 1 January 1996 and, during the whole of the period of 2 years ending immediately before the date when the deceased died, the person was living:
(i) in the same household as the deceased, and
(ii) as if that person and the deceased were a married couple or civil partners.
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A child of the deceased;
Under I(PFD)A 1975, s.25, claims are not just limited to current biological children. Claims can be brought on behalf of a child that has yet to be born (en ventre sa mere), and children that were ‘treated as a child of the deceased’, for example a step-child.
Regarding the latter, circumstances are dependent on the specific facts of the case. In deciding whether reasonable provision has been made for a non-biological child, in addition to the factors appliable to all claimants further additional considerations must be given, this can include but is not limited to: –
- whether the deceased maintained the non-biological child, if so, consideration is to be given to 1) the length of time for which contribution were made; 2) basis on which the deceased did so, and 3) to the value contribution made by way of maintenance and, to what extent the deceased assumed responsibility for the maintenance;
- whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the child was not their own child; and
- the liability of any other person to maintain the child (i.e. biological parent to a step-child).
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Any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
The inclusion of this class of claimant can be far reaching in scope. I(PFD)A 1975, s 1(3) provides that ‘a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than a contribution made for valuable consideration pursuant to an arrangement of a commercial nature.’
The concept of a person that was maintained by the deceased was considered further in the case of Ilot v Mitson (No.2) [2017], where the courts determined the following criteria: –
- Maintenance connotes payments which enable an applicant to discharge the costs of their daily living at whatever standard is appropriate to them; the provision is to be made to meet recurring expenses, being expenses of living of an income nature.
- An award can be made by way of a lump sum, paying off debts or the purchase of a property to meet a housing need.
- The level of maintenance to be provided is flexible and falls to be decided on the facts of each case: it is not limited to subsistence level but is to be judged by the standard appropriate in the circumstances.
- The applicant must show “something more” to establish a claim beyond living in necessitous circumstances and having a qualifying relationship with the Deceased.
- Determining whether reasonable financial provision has been made for the applicant by the Will or the intestacy rules should be assessed as at the date of the hearing and not for example as at the date the Will was made. The circumstances of the applicant may have changed owing to chronic illness or incapacity.
