The effect of the anti-avoidance provisions contained within sections 10–13 of the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) is that a person (including a trustee) who has received money, property or other assets from the deceased during their lifetime may be ordered to pay money or provide property to a claimant for reasonable financial provision under I(PFD)A 1975. The provisions effect the donee and their estate and not the money, assets or property given to the donee by the deceased. The remedy provided by I(PFD)A 1975, ss 10–13 is not a tracing remedy. Where an application for reasonable financial provision is made, the claimant can combine this with an application to, in effect, recoup assets that have been disposed of with the intention of moving those assets out of the deceased's net estate. This includes where an application to extend time is also made by the claimant under I(PFD)A 1975, s 4. For the application to succeed the court has to be satisfied: • that the deceased, less than

Under section 3 of the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) there are matters to which the court must have regard in all cases, see Practice Note: Family provision claims—matters to which the court must have regard. There are also matters to which the court must have regard for specific classes of applicant only and it is these matters that are considered in this Practice Note. Surviving spouse/civil partner or former spouse/civil partner (not remarried/formed a new civil partnership) In relation to an application made by a spouse or civil partner or former spouse or former civil partner, who has not formed a subsequent marriage or civil partnership, the court will additionally have regard to: • the age of the applicant • the duration of the marriage/civil partnership • the contribution by the applicant to the welfare of the family of the deceased, including looking after the home or caring for the family • in the case of a spouse/civil partner, what they could have expected to receive if the

The Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) is designed to allow a court to vary the dispositions effected by the Will or intestacy of a person domiciled in England or Wales at the time of their death. The court may make or increase financial provision to certain classes of claimant as set out in I(PFD)A 1975. In coming to a conclusion as to whether or not reasonable financial provision has been made for a claimant, the court must have regard to various factors set out in the I(PFD)A 1975, s 3. The court will need to consider together the two questions: • did the Will or intestacy make reasonable financial provision for the claimant? • if not, what reasonable financial provision should now be made for the claimant? When answering these two key questions, I(PFD)A 1975, s 3(1) directs the court to have regard to all the matters set out in that subsection. These are known as the ‘section 3 criteria’. The I(PFD)A 1975 does

What is a no contest clause A no contest clause, also known as a forfeiture clause, is a clause in a Will that causes the beneficiary’s interest to be taken away (forfeited) if they challenge the provisions of the Will. No contest clauses may also be used in trusts. As claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) have increased, so too has the interest in incorporating a no contest clause in a testator’s Will as a means of discouraging and preventing such claims. Can Family provision claims be excluded As a matter of public policy it is generally accepted that it is not possible to oust the jurisdiction of the court. Accordingly a Will clause that said a beneficiary cannot make an I(PFD)A 1975 claim would likely be invalid—it would be ignored by the court. I(PFD)A 1975, ss 15 and 15A allow a court on divorce/dissolution proceedings, if it considers it just to do so, to order that a party to the marriage/civil partnership cannot be an applicant

If a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) proceeds to a final hearing, the court can make one or more of the following orders: • periodical payments for such term as may be specified • a lump sum of such amount as may be specified • the transfer to the applicant of such property as may be specified • the settlement for the benefit of the applicant of such property as may be specified • the acquisition of such property from the estate as may be specified and the transfer of the property to the applicant or the settlement of the property for their benefit • the variation of any ante-nuptial or post-nuptial settlement (including such a settlement made by Will) made on the parties to a marriage to which the deceased was one of the parties, the variation being for the benefit of the surviving party to that marriage or any child of that marriage or any person who was treated by the deceased

Time limits An action under Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) should generally be commenced before the expiration of six months from the date of a grant to the estate. An application after that date can only be made with the permission of the court. For guidance on time limits, see Practice Note: Family provision claims—preliminary issues—Time limits. Pre-action conduct There is no pre-action protocol for claims under I(PFD)A 1975 but the parties should have regard to the Practice Direction Pre-Action Conduct and Protocols. The court will expect the parties, taking into account the aims of ensuring they are on an equal footing, saving expense and proportionality, to observe the Practice Direction and act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the issue of proceedings. The parties conduct under the Practice Direction should normally include: • the claimant writing to give details of the claim • the defendant acknowledging the letter of claim within a reasonable time—14 days in a straightforward

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. A testator can choose not to make a Will, in which case their estate 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 from I(PFD)A 1975. 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 individuals may apply to the

Procedural table grant of representation and of every Applicants Spouse or civil partner of the deceased. I(PFD)A 1975, s 1(1)(a) Former spouse or civil partner of the deceased who has not formed a subsequent marriage or civil partnership. I(PFD)A 1975, s 1(1)(b) Cohabitant of the deceased (who for the whole of the two years immediately before the deceased’s death was living in the same household as the deceased as the spouse/civil partner of the deceased) I(PFD)A 1975, ss 1(1)(ba), 1(1A) Child of the deceased. I(PFD)A 1975, s 1(1)(c) Any person who was treated as a child of the family by the deceased. I(PFD)A 1975, s 1(d) Any other person who immediately before the death of the deceased was being maintained by the deceased. I(PFD)A 1975, s 1(e) Court High Court (Chancery Division

Reasonable financial provision In the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) there is only one ground for the claim, namely: '… that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.' Having overcome the first hurdle of successfully proving that they are a claimant, the applicant will be faced with the requirement of showing that the deceased did not make reasonable financial provision for them. This has created a plethora of cases. I(PFD)A 1975, s 1(2) distinguishes between the spouse or civil partner of the deceased on the one hand and all other applicants on the other. For a spouse or civil partner reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for them to receive, whether or not that provision is required for their maintenance. For all other applicants reasonable

The taxation of the estate is often a significant consideration in the compromise of claims under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). The taxation of estates Inheritance tax (IHT) imposes a charge upon a deemed transfer of assets taking place on death. Up to the nil rate band (NRB) (currently £325,000), the rate of taxation is 0%, after that, all assets are charged at 40% (subject to exemptions and reliefs). This is complicated by unused NRB being transferable to a person’s spouse and by the recent creation of a residence NRB (RNRB). Transfers to (domiciled) spouses and to charities are exempt from taxation. In addition, certain property (agricultural property and business property) is exempt from charge up to a total value of £2.5 million in any seven-year period and, thereafter, subject to 50% relief. An unused part of the 100% relief is capable of being transferred to a surviving spouse. Settlements are subject to their own taxation regime. For more information, see: Estates—inheritance tax—overview. Capital

This Practice Note considers how a claim brought under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) might be compromised to: • maximise the availability of welfare benefits or tax credits for a claimant • avoid a claimant losing entitlements to other state funding, such as for community or residential care • achieve the same results for beneficiaries of the estate who are not claimants under the I(PFD)A 1975 The powers available under the Inheritance (Provision for Family and Dependants) Act 1975 The court’s powers to make an order pursuant to I(PFD)A 1975, s 2 include orders for the payment from the net estate of periodical payments, lump sums for the transfer of specific property and orders varying ‘for the applicant’s benefit the trusts on which the deceased’s estate is held’. There is therefore a wide range of possible forms in which provision might be made by the court for a claimant and it is not necessary that an award be made by a simple lump sum payment. Pursuant

Spouse or civil partner of the deceased Topic Case name Summary Author Spouse of the deceased Ramji v Harvey (in his capacity as executor of the estate of Sugrim Orlando Ramji deceased) [2023] EWHC 1664 (Ch) News Analysis: Lifetime transaction set aside on the basis of undue influence (Ramji v Harvey).In this preliminary issue trial in a claim under I(PFD)A 1975, the court set aside a transfer finding that the relationship between the deceased and the surviving spouse was one of trust and confidence resulting in a presumption of undue influence. Holly Challenger, Parklane Plowden Chambers Spouse of the deceased Re estate of Singh (deceased) [2023] EWHC 304 (Fam) News Analysis: Spousal claim under I(PFD)A 1975 dealt with on an abbreviated basis (Re estate of Singh (deceased))The judge dealt with this claim on an abbreviated basis, as the claim was either uncontested or alternatively, if D3 were to contest the claim, summary judgment could be given.  Aimee Jones, Sternberg Reed LLP Spouse of the deceased Banfield v Campbell [2018]