Divorce Solicitor Croydon
As the Deceased's spouse (husband or wife) or Dependant you are entitled to make an Application under the Inheritance (Provision for Family and Dependants) Act 1975, which shall be referred to as the I(PFD)A 1975 from now on.
Under the I(PFD)A 1975, there are six categories of person who is entitled to apply on the grounds that the deceased's Will or the Rules of Intestacy (which apply when there is no will) or a combination of both fail to "make reasonable financial provision" for the Applicant.
One of the six categories is the wife or husband of the deceased. A Husband or Wife must prove that he or she was validly married to the deceased and the marriage was subsisting at the death of the deceased. A Marriage Certificate is prima facie evidence of a valid marriage, unless challenged when further proof will be necessary.
There is a two-stage process to determine whether "reasonable financial provision" has been made. The Court will ask:
1. Has the Will or Intestacy or a combination of both had the effect of failing to make reasonable financial provision for the Applicant?
2. If so, the Court goes on to consider the question of what would amount to reasonable provision for that Applicant.
There are two tests of reasonableness to be applied; the first to decide whether the provision made for the Applicant was reasonable and second, to decide whether it is reasonable to make an Order now. Both questions must be answered in the Applicant's favour if the Applicant is to succeed.
There are two standards of provision. The Surviving Spouse standard and that applied in all other cases. Broadly speaking, a Spouse is treated in a similar way as if the Spouses were divorcing.
The I(PFD)A 1975 sets down guidelines which are common to all Applications to help the Court to decide whether the deceased made "reasonable financial provision" for the Applicant and also to help the Court decide whether to exercise its discretion to make an Order.
The Court must have regard to the following matters:-
i) The financial resources and needs of the Applicant, any other Applicant or beneficiary now or in the foreseeable future. Earning capacity, pensions and Social Security benefits are all relevant in ascertaining the Applicant's financial resources, as are any capital assets of the Applicant. In considering the Applicant's financial needs, the Court must take into account the financial obligations and responsibilities. If the needs of the beneficiaries are great, the Application is likely to fail. In seeking to meet the Applicant's needs, the Court will also have regard to the type of Order which is most appropriate.
ii) Any obligations and responsibilities of the deceased towards any Applicant or beneficiary entitled under the deceased's Will or the Rules of Intestacy. Obligations include moral obligations as well as legal obligations owed by the deceased to the Applicant and to other beneficiaries. Moral obligation may arise partly out of the relationship of the Applicant to the deceased and partly out of the needs of the Applicant. For example, normally, one spouse owes a moral obligation to the other.
If the Estate of the deceased is not large enough to discharge all of the deceased's obligations, then the Court will have to weigh up the conflicting claims.
iii) The size and nature of the net Estate of the deceased. The Court will be reluctant to interfere in the case of very small Estates. It will discourage Applications where the cost of the action may exhaust a large part of the assets of the Estate. If the Estate is small, no Order may be made if it would not be sufficient to make a real contribution to the maintenance of the Applicant.
iv) Any physical or mental disability of any Applicant or any person entitled either under the deceased's Will or the Rules of Intestacy. For example, the Court would treat favourably a Claim by a disabled adult child.
v) Any other matter, including the conduct of the Applicant or of any other person. This covers the conduct of the deceased as well as that of the Applicant or any other beneficiary. The conduct can be negative or positive and may influence the Court's decision.
In addition to considering the general guidelines, the Court has special guidelines to consider for each class of Applicant.
For a surviving spouse, the Court would consider the following additional guidelines:-
1. The age of the Applicant and the duration of the marriage.
2. The contribution by the Applicant to the welfare of the family of the deceased, including any contribution in looking after the home and caring for the family and
3. The provision the Applicant might reasonably expect to receive if on the day when the deceased died the marriage, instead of being terminated by death, had been terminated by a Decree of Divorce.
The starting point is the amount which the Applicant could have expected to receive from Divorce.
There is a time-limit for making Applications under the I(PFD)A 1975. That time-limit is 6-months from the grant of Probate or Letters of Administration to the Estate. Time extensions can be granted by the Court, but successful Applications to extend the limit are rare.
Upon determining an Application, the Court has a wide range of powers to make a variety of Orders - for example:
Periodical payments: These are regular payments of a specified amount that can be for life for a limited period - e.g until re-marriage or for a specified number of years.
A lump sum payment: This is an Order for payment of a specific sum. The Order can specify payment in installments.
A transfer of property: The Court can Order the transfer of Title to a property, e.g. a dwelling-house.
A settlement of property: The Court has wide powers to Order settlements of property - e.g. for making provision for infant children.
Orders for acquisition of property: The Court can Order a house to be purchased for the Applicant.
A variation of Marriage settlement: The Court has a limited power to vary existing Orders in respect of periodical payments.
Nadia Beckett was a senior partner and head of the family law and litigation department of James & Beckett Solicitors for 10 years. She established Beckett Solicitors in August 2008 and opened a second office in Croydon Surrey. Together with Kirsty Reeves, Nadia has been a practicing solicitor in Rainham, Gillingham in Kent since 1996. Nadia Beckett is a member of The Law Society and subscribes to the Resolution's Code of Practice in Family Law. On the 31 July 2009, Kirsty Reeves became a partner in the firm. Kirsty specialises in all aspects of family law.
http://www.beckett-solicitors.co.uk
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