Whilst any person has testamentary freedom to leave their estate however they see fit, they should be aware that their freedom is slightly restricted by the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act).
The 1975 Act gives the court powers to order financial provision from a deceased’s estate to benefit certain applicants. Only people who fall into the classes named in S1 of the 1975 Act can apply to the court based on a lack of reasonable provision, although their ability to bring an application does not mean that their application will be successful and there are a number of factors that the courts will consider when dealing with an application.
If a person does not fall into any of the following categories, they cannot apply for an order under the 1975 Act. Clients can be assured therefore that those not falling into these categories cannot bring an application under the 1975 Act.
The surviving spouse/civil partner of the deceased can bring an application. This includes a judicially separated spouse and a spouse or civil partner who is separated but the marriage or civil partnership has not yet ended.
A former spouse/civil partner who has not yet remarried or formed a new civil partnership can apply. A former spouse or civil partner may however be barred from applying under the 1975 Act in the decree of dissolution of the divorce or civil partnership.
A cohabitant can bring an application. The 1975 Act defines this as a person (who is not the spouse or civil partner of the deceased) who lived with the deceased for period of at least two years ending immediately before the date the deceased died and they lived as if they were husband and wife (or as if they were civil partners).
A child of the deceased can apply under the 1975 Act. This includes any children of the deceased en ventre sa mère mere, illegitimate children and any adopted children but does not include a child born to the deceased but adopted by someone else.
The act makes no age restriction, so both minor and adult children can bring an application.
A person treated as a child
A person who was treated by the deceased as a child of the family can bring an application. This was previously restricted to just stepchildren and former stepchildren, however the Inheritance and Trustees’ Powers Act 2014 amended this to also include any child in relation to any family in which the deceased stood at any time in the role of a parent. This extended category can also include children of an unmarried partner and children who they are, or were, the guardian of.
The final category is any person, who does not fit into the previous groups, who immediately before the death of the deceased was maintained either wholly or partly by the deceased. A person is only seen as being maintained by the deceased if the deceased, otherwise than for full valuable consideration (for example being paid for maintaining the person), was making a substantial contribution in money or monies worth towards the reasonable needs of that person.