Wills1975 Act Special Guidelines

As well as the general guidelines under S3(1) Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) in last week’s article that the courts must consider in all cases, S3(2)-(4) cover special guidelines that the courts must consider for each different class of applicants under the 1975 Act.

Spouses/Civil Partners (including judicially separated and former)

There are three guidelines for the court to consider for current, former and judicially separated spouses/civil partners:

a. the age of the applicant and the duration of the marriage;

b. the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family

c. In the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a degree of divorce.

An elderly applicant will likely have a stronger claim than a young one, as a young spouse is still likely to be able to work and similarly a long marriage will strengthen a claim whereas a short one would weaken it.

A spouse that has spent the duration of the marriage looking after the deceased’s home would clearly have a stronger claim than a spouse that spent the majority of the marriage living on their own.

The final guideline is known as the ‘Imaginary Divorce Guideline’ and it is relevant to surviving spouses but will only apply to former spouses and judicially separated spouses if the courts had exercised their discretion for the surviving spouse standard to apply. It is essentially that the courts must consider what provision the applicant would have received if the marriage ended in divorce rather than marriage.

Whilst not stated in the act, a mention should also be given to conduct, especially where the marriage had broken down before the deceased’s death. The court usually deems conduct that led to the breakdown as irrelevant, as is the case in divorce proceedings. However, there is still a minority of cases where it can be considered as unreasonable to disregard such conduct. The courts may decide to give a much smaller award if one spouse had acted particularly viciously towards the other towards the end of the marriage.

In relation to former spouses and judicially separated spouses there are very few cases where a claim would succeed when financial provision has already been made, however that is not to say a claim would never succeed. The courts have previously decided that where the deceased died less than a year after an order to make periodical payments to a former spouse it is reasonable to make an award to them.

In the case of a former spouse or civil partner, a divorce decree or dissolution order can include a restriction which will stop either party from applying under the 1975 Act for lack of reasonable provision from each other’s estates.

Cohabitants

The special guidelines for cohabitants are similar to those for a spouse:

a. the age of the applicant and the length of the period during which the applicant lived as the husband or wife (or civil partner) of the deceased and in the same household as the deceased;

b. the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

Child

When considering an application by a child of the deceased, the only special guideline that should be considered is:

a. the manner in which the applicant was being, or in which they might expect to be, educated or trained

If a child is in private education for example, the courts will consider this when considering what financial provision is reasonable for the child to receive.

Whilst it is not mentioned in the 1975 Act, the age of a child is an important factor that the courts will consider. An application by an infant child would have a much higher chance of success as parents have a moral and financial obligation to care for infant children. A claim by an adult able-bodied child however would not always succeed and the courts will consider all the circumstances of the case when making a decision.

The courts accept that that parents owe continuing obligations and responsibilities to their children, even where a child is estranged, but if a child’s only argument is that they are worse off not getting anything from the estate they are unlikely to be successful.

Child of the Family

The guidelines for the court to consider for a person treated as a child of the family are:

a. the manner in which the applicant was being, or in which they might expect to be, educated or trained;

b. to whether the deceased had assumed any responsibility for the applicant’s maintenance and, if so, to the extent to which and the basis upon which the deceased assumed that responsibility and to the length of time for which the deceased discharged that responsibility;

c. to whether in assuming and discharging that responsibility the deceased did so knowing that the applicant was not his own child;

d. to the liability of any other person to maintain the applicant.

Apart from the education or training guideline, these all refer to the deceased assuming some responsibility for the child’s maintenance. It should be noted that the applicant maintaining the child is not essential for success as it is possible for an independent adult stepchild to bring a successful application. A common example would be where a husband and wife both have their own adult children from previous relationships and each treat each other’s children as if they were their own. The husband dies leaves his estate to the wife and then she dies intestate or excludes her late husband’s children.

Dependants

The only guideline for dependants is stated in S3(4):

a. the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility.