Family provision claims—preliminary issues
Family provision claims—preliminary issues

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Family provision claims—preliminary issues
  • Jurisdiction
  • Proof of death
  • Domicile
  • Domicile of origin
  • Domicile of choice
  • Time limits
  • The position of the personal representatives
  • Claims avoidance

Testators have freedom to dispose of their estates as they wish, subject to the formal requirements for making a Will, the requirements of testamentary capacity and statute. They can choose not to make Wills, in which case their estates will devolve in accordance with the intestacy rules.

Since 1938, testamentary freedom has been artificially restricted by statute. The modern restrictions are contained in the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) as amended.

The effect of I(PFD)A 1975 is that a testator (and their Will drafter and personal representatives) cannot ignore that dependants may have a claim against the estate and the testator's ability to do as they wish may be severely curtailed. It is not sufficient for a testator to rely on the laws of intestacy, as these too are subject to legislative interference.

However, the purpose behind the legislation is not to reward disappointed beneficiaries, although it does allow the courts to take a moral stance, particularly in the case of hardship.

Thus, since 1 April 1976, if a person dies domiciled in England and Wales and is survived by any of a certain group of people, any of those people may apply to the court for an order under I(PFD)A 1975 on the ground that the disposition of the deceased's estate effected by their Will or the law relating to intestacy,

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