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#13759 - Inheritance Act 1975 - Private Client

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Inheritance Act 1975 Guidelines

  • S.3 1975 Act set out the guidelines

  • To be considered when court deciding:

  1. Has a reasonable provision already been made under the will / intestacy?

  2. If a provision should be made – what provision is appropriate?

COMMON GUIDELINES: S.3(1)

Future financial resources / needs

  • Can the applicant work? What is his earning capability?

  • Is unemployment voluntary or not?

  • Is loss of future income likely – e.g. retirement

  • Other beneficiaries?

  • Can applicant get financial support anywhere else
Obligations / responsibility of the deceased

  • What obligations existed IMMEDIATELY before death
Size of the estate

  • Small or large

  • Does the cost of the action exhaust a large part of the estate [estate usually pays for the claim]

  • Nature of estate: was it inherited from family or self made wealth?

  • Does the house take up most of the estate? Court will not want to turf a beneficiary out of their home
Any physical or mental disability

  • Of applicant OR other beneficiaries

  • Has there been a large payment of compensation
Other relevant matters

  • APPLY!

  • Quarrels / promises made before just before death / conduct of the applicant

SPECIAL GUIDELINES: S.3(2)

Spouse / civil partner

  • Age of applicant

  • Duration of marriage / cohabit period

  • Contribution to welfare of family [incl. looking after the home]

  • Entitlement on divorce [what would x have got on dissolution of marriage. But is this applicable – under inheritance claim one of the parties no longer has financial need

Spouse – could get life interest [so preserve the estate for the younger children]
Former spouse not remarried

  • Terms of the divorce

  • Age of marriage

  • Contribution to welfare of family / home
Child of deceased

  • Manner of education and training the applicant might expect – had they been in private or state education?

  • Able-bodied adults who are capable of earning own living – less likely to get a provision
Child of the family

  • Manner of education / training the applicant might expect

  • Extent of responsibility of deceased

  • Whether deceased KNEW the child was not his own [does that explain why he looked after him like a child]

  • Is there anyone else legally responsible for him
Dependent

  • Extent to which deceased assumed responsibility for maintenance

  • Length of time deceased discharged that responsibility

EXAM:

  1. Preliminary requirements: time / who / standard of provision

  2. Guidelines – common and special

  3. What TYPE of payment is likely and WHERE will it come from [includes joint property]

Checklist when taking instructions:

  • Is testator aware of any potential claims

  • What is his motive for cutting someone out – letter to PRs to be kept with the will

  • Protecting the cohabitee

  • Take a “file note” on anything relevant that may be used as future evidence

  • DO NOT ACT for applicant if you acted for testator – professional conduct issue

  • If you are a PR – do not act for claimant

  • Liaise...

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