Claims against estates (Inheritance (PFD) Act 1975)

WAE.10 — Claims against estates: Inheritance (PFD) Act 1975

The core idea. Testamentary freedom is the default in England & Wales, but the Inheritance (Provision for Family and Dependants) Act 1975 lets the court override a will or intestacy where it fails to make reasonable financial provision for a qualifying applicant. The court does not rewrite the will to be "fair" — it asks whether the result (will and/or intestacy combined) leaves reasonable provision.

Two jurisdictional gateways.

1. Deceased died domiciled in England & Wales, AND
2. Applicant falls in an eligible category, AND
3. Claim is in time.

Eligible applicants (s.1(1)):

• Spouse / civil partner — s.1(1)(a)
• Former spouse/CP who has not remarried — s.1(1)(b) (and no s.15 bar)
• Cohabitant living with deceased as spouse/CP for the 2 years ending immediately before death — s.1(1)(ba), defined by s.1(1A)
• A child of the deceased (any age) — s.1(1)(c)
• A person treated as a child of the family (e.g. stepchild) — s.1(1)(d)
• Any person maintained (wholly or partly) by the deceased immediately before death — s.1(1)(e)

Two standards (s.1(2)):

• Surviving spouse/CP standard: such provision as is reasonable whether or not needed for maintenance — generous.
• Everyone else (the "ordinary" standard): reasonable provision for maintenance only.

Common factors (s.3): financial resources/needs of applicant and beneficiaries, deceased's obligations, size and nature of the estate, disability, conduct. Spouse factors: age, marriage length, contribution; plus the divorce cross-check in s.3(2) (what a divorce court might have awarded — a benchmark, not a ceiling: Fielden v Cunliffe [2005] EWCA Civ 1508; cf. Re Krubert). For adult children and the breadth of the s.3 evaluation generally, see Ilott v Mitson (Ilott v The Blue Cross) [2017] UKSC 17.

Traps to nail:

• Time limit: 6 months from the grant of representation (s.4). Out-of-time needs court permission.
• Domicile, not residence, is the gateway. No domicile in E&W = no claim.
• The cohabitant route (s.1(1)(ba)) needs the full 2 years; a maintained-person claim (s.1(1)(e)) is the fallback but only the maintenance standard.
• Adult children can claim but face a high bar — Ilott confirms no automatic entitlement; need shows more than just being a child.
• Provision can come from the estate and from property under the anti-avoidance provisions (ss.10–13: dispositions intended to defeat claims (s.10), contracts to leave property by will (s.11), supplementary provisions (s.12), powers against persons benefiting (s.13)).
• The will being valid is irrelevant — a valid will can still be varied.

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