| 1 | Can the individual apply? |
| Domicile and Time Limits | Deceased must die domiciled in England and Wales Application must normally be made within six months of date of grant Court has discretion to allow late applications |
| Applicants | -
Spouse or civil partner -
Former spouse/civil partner who has not remarried -
A person who has cohabited with the deceased -
Child of deceased includes a child of a non-marital relationship, an adopted child, and a child en ventre sa mere an adopted child is not able to make a claim as a child of the natural parent a child of any age may apply, but historically, applications from able-bodied adults capable of earning their own living have not been treated sympathetically by the courts, unless the adult remains in full-time education (reasonableness test) -
Person treated by the deceased as a child treated as a child of the family in connection with a marriage/civil partnership to which the deceased was a party person can be a child of the family even if they were already an adult when the deceased married (or entered into a civil partnership with) their parent -
Person who immediately before death of deceased was being wholly or partly maintained by deceased s.1(3): “a person is to be treated as being maintained … 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 full valuable consideration” Bishop v Plumley [1991] care & nursing for free accommodation is not valuable consideration |
| 2 | Does the deceased’s will or intestacy make reasonable provision for the applicant? |
| Surviving Spouse Standard | |
| Ordinary or Maintenance Standard | S.1(2)(b): such financial provision as it would be reasonable for the applicant to receive for this maintenance Objective test – Re Coventry (dec’d) [1980] Re Dennis [1979]: ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of daily living at whatever standard of living is appropriate to them |
| 3 | How should the court exercise its discretion to make an order? |
| Common Guidelines – s.3(1) | Financial resources and needs of applicant Financial resources and needs of other applicants – Stephanides v Cohen [2002] Financial resources and needs of beneficiaries Obligations and responsibilities of deceased towards the applicant Size and nature of full estate – Re Fullard [1981] Physical or mental disability of applicant – Re Wood (1982) |
| Particular Guidelines | Spouse/civil partner and former spouse/civil partner – s.3(2): age, duration of marriage/civil partnership, contribution to marriage/civil partnership, imaginary divorce provision Cohabitant – s.3(2A): age, length of cohabitation, contribution to welfare of the family Children – s.3(3): manner of education and training Children of the family – s.3(3): manner of education and training, assumption of responsibility, liability of another person to maintain applicant Person wholly or partly maintained – s.3(4): assumption of responsibility and length of time for which deceased discharged responsibility. |
| Types of Order | S.2(1) | periodical payments lump sum payment transfer of property settlement of property | |
| Court can: | direct how burden of order is to be borne by the estate – s.2(4) make an interim order – s.5, and subsequently vary a periodical payments order – s.6 |
| Property Available For Provision | Order for provision made against the "net estate" of the deceased – s.25(1): Property of which deceased had power to dispose by will General powers of appointment Statutory nominations and DMC – s.8 Joint tenancies – s.9. ITPA 2014 provides that the court can exercise the power under s.9 even where an application had been made more than six months after a grant of representation was first taken out. Dispositions and contracts – ss.10 & 11 |
| Anti-Avoidance Provisions | |
