What is the 1975 Act and what claims can be made under it?

The 1975 Act is shorthand for the Inheritance (Provision for Family and Dependants) Act 1975. It allows certain persons to apply to the court for financial provision from the estate of a deceased person.

The key question asked in any claim brought under the 1975 Act is whether the deceased’s Will (or the intestacy rules) failed to make reasonable financial provision for the person bringing the claim, taking into account all the circumstances of the case. The burden always falls on the applicant to prove that this reasonable provision has not been made.

How do claims brought by spouses/civil partners under the 1975 Act differ to those by other classes of applicants?

The category into which an applicant falls will affect the standard of provision to be applied.

If the applicant is the spouse or civil partner (which includes former spouses and civil partners where there has not been formal separation) who seeks financial provision from the deceased’s estate, reasonable financial provision means ‘such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance’.

For any other category of applicant, the applicable standard is confined to “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.”  (section 1(2)(b) of the 1975 Act).

The key distinction between the two standards is that claims by spouses and civil partners are not restricted to ‘maintenance’ and, as such, is the higher of the two standards.

What factors are looked at when considering a 1975 Act claim? Are there additional factors that apply to claims brought by spouses and civil partners?

In order to decide whether ‘reasonable financial provision’ has been made or not, the court will look at numerous factors, such as:

• The applicant’s assets and income, both current and what they are likely to be in the foreseeable future.
• The assets and income, both current and anticipated, of any other beneficiaries and any other person making a claim under the 1975 Act.
• Any obligations and responsibilities the deceased had towards any applicant or any beneficiary;
• The size and nature of the net estate of the deceased.
• Any physical or mental disability of any applicant or beneficiary of the estate.
• Any other matter, including the conduct of the applicant or any other person, which the court may consider relevant.

For claims pursued by spouses and civil partners, the court will also consider the age of the applicant the duration of the marriage/civil partnership and the contribution made by the applicant to the welfare of the family (which includes looking after the home or caring for the family) of the deceased and the provision which the applicant might have received had the marriage ended by divorce rather than death (this latter factor is commonly referred to as the ‘divorce cross-check’ ).

The court will not apply greater weight to one factor over another but all relevant factors are considered in the round before determining what constitutes reasonable financial provision.

When must a claim be brought?

A claim must be issued within six months from the date of the grant of representation being issued in the deceased’s estate. If a claim is not brought within this timeframe then the permission of the court to make an application out of time is required and the court has discretion as to whether to grant such permission.

What awards can be made under the 1975 Act?

If it is determined that the reasonable financial provision has not been made by the deceased, the question turns to what award should be granted.

As mentioned, the category of applicant is important when considering the standard of provision to be awarded. Spouses and civil partners are not restricted to maintenance, whilst other applicants (such as children and siblings) can only be awarded maintenance.

The court will exercise its discretion when determining the most appropriate way of providing reasonable financial provision and, in this regard, the 1975 Act gives the court the power to make:

• A periodical payments order
• A lump sum order
• A transfer of property order
• An amount settled on trust
• An option to purchase an asset of the estate; and/or
• A variation of a pre- or post-nuptial agreement, or equivalent settlements in respect of civil partnerships

Any award will generally be made from the net estate of the deceased.  As for the parties’ costs of the litigation, the general rules on ‘cost shifting’ under the Civil Procedure Rules  apply, namely that the losing party pays the winning party’s legal fees. However, the court has discretion to deviate from this general rule and will consider numerous factors when making that decision, including the parties’ conduct and attempts made to resolve the dispute during the course of the litigation.

How we can help

For help or advice on will validity claims or other related topics, please contact our specialist disputes team.