Family provision claims

Family provision claims—preliminary issues

Before the court can exercise jurisdiction it must be proved that the deceased died domiciled in England and Wales. The question of domicile can be a complex issue but broadly, it will depend on the deceased’s:

  1. domicile of origin

  2. domicile of choice: this does not replace the domicile of origin but may suspend it

Where the deceased’s domicile is contended, it is for the claimant to prove domicile on the balance of probabilities. Proof of death is also an obvious prerequisite of an application and the burden of proof of that also rests with the claimant.

Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) in the High Court are assigned to either the Chancery Division or Family Division, depending on the claimant's choice. Proceedings can also be issued in the County Court.

See Practice Note: Family provision claims—preliminary issues.

Domicile and habitual residence

There are significant differences between domicile and habitual residence: habitual residence is generally a question of fact whereas domicile is a legal concept. There are also differences in

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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