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A Practitioner's Guide to Inheritance Act Claims 4th ed


ISBN13: 9780854902989
Previous Edition ISBN: 9780854902224
Published: July 2023
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Hardback
Price: £95.00



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This new edition is a comprehensive, accessible, and practical guide to the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. It provides up-to-date guidance on the law, practice, and procedure on the ever-increasing applications for financial provisions under the Act. The provisions of the Act and its interpretation by the courts are set out and explained by providing summaries of relevant cases. The book also contains a step-by-step guide to the preparation of a case under the Act and the practice and procedure to process an application through the courts.

The introduction provides an overview of the background of the legislation, the amendments that have been made, and the issues that still need to be resolved, particularly in relation to cohabitants. Each chapter comprehensively deals with information on the preconditions and time limits to prepare for an application to be made under the Act. These include issues such as domicile, limitation of time, eligibility, grounds for making a claim and the necessary factors to establish a claim. The book also provides useful information on claims based on constructive trusts and proprietary estoppel which so frequently arise in farming claims and claims made by cohabitants and other family members.

The new edition sets out the challenges of cryptocurrencies, crypto assets, and currency. It also emphasises the importance of engaging in negotiations and mediation as part of the pre-proceedings steps to be taken, and the adverse impact on costs of failure to do so or frustrating attempts made to resolve the issues by agreement.

The Appendices contain the 1975 Act, as amended, various Rules and Practice Directions, ACTAPS Practice Guidance, as well as precedents which provide a checklist of the information and evidence necessary to establish a case for each category of eligible claimant.

“With claims against estates for financial provisions increasing rapidly, it is necessary to have clear commentary and direction on how cases should be brought, managed and even settled. This is one such necessary step-by-step guide. Its practicality was immediately obvious as I found myself considering the application of its contents to my own caseload…13 chapters, with each speaking to essential aspects of claims being brought and challenged under the Inheritance Act 1975. ..wide-ranging, with the author’s technical knowledge apparent at every juncture. Each subject is concisely explained and discussed in accessible language.”

Law Society Gazette

"Lawyers dealing with inheritance tax issues would be wise to acquire this long established and eminently useful title - now in a new and extensively updated 4th edition...Comprehensive and practical, this authoritative legal text has long been regarded as an essential purchase for practitioners involved in this particularly challenging area of law.

Elizabeth Robson Taylor, Richmond Green Chambers and Phillip Taylor, Head of Chambers, Reviews Editor, ‘The Barrister’ and Mediator

ABOUT THE AUTHOR

Nasreen Pearce is a retired circuit judge and former district judge of the Principal Registry of the High Court. She is the General Editor of 'Butterworth’s Wills, Probate and Administration Service' and 'Emergency Remedies in the Family Courts', and has also written extensively on other areas of family law and applications in the Court of Protection. She is the author of A Practitioner's Guide to Probate Disputes, 2nd edition (2022),also published by Wildy, Simmonds & Hill Publishing.

Subjects:
Family Law, Wills and Probate, Wildy, Simmonds and Hill
Contents:
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of Guides and Codes of Practice
Table of International Materials
1. INTRODUCTION
1.1 Background
1.2 Urgent need for law reform
2. PROOF OF DEATH AND DOMICILE
2.1 Introduction
2.2 Proof of death
2.3 Domicile
2.4 Domicile of origin
2.5 Domicile of dependency
2.6 Domicile of choice
2.6.1 Residence
2.6.2 Intention
2.6.3 Burden of proof
2.6.4 Standard of proof
2.6.5 Evidence
2.6.6 Summary
3. TIME LIMITS
3.1 Introduction
3.2 Commencement of the period of 6 months
3.2.1 Grant ad colligenda bona
3.2.2 Grant pending determination of claim
3.2.3 Grant ad litem
3.2.4 Grant in common form
3.2.5 Successive grants
3.2.6 De bonis non grant
3.2.7 Cessate grant
3.2.8 Authority to the Official Solicitor to obtain a grant: Senior Courts Act 1981, section 116
3.2.9 Standing search for grant
3.3 Can a claim be made before grant?
3.3.1 The position post-1 October 2014
3.4 Applications in respect of joint property – I(PFD)A 1975, section 9
3.5 Extension of time
3.5.1 Powers of the court
3.5.2 The relevant criteria to be applied in an application for extension of time
3.5.3 Merits of the claim
3.5.4 Delay in bringing the claim
3.5.5 Negotiations
3.5.6 Distribution of the estate
3.5.7 Claimant’s possible claim against third parties or solicitors
3.5.8 Conscious decision not to make a claim
3.5.9 Claimant under disability
3.5.10 Delay caused by application for public funding
3.6 Procedure
3.7 Burden of proof
4. CLAIMANTS
4.1 Introduction
4.2 Spouse of the deceased
4.2.1 Proof of marriage
4.2.2 Polygamous and potentially polygamous marriages
4.2.3 Void marriages
4.2.4 Rights of spouse to void marriage under the I(PFD)A 1975
4.2.5 Marriage entered into in good faith
4.2.6 Distinction between void marriage and non-marriage
4.2.7 Effect of annulment of void marriage to claim under the I(PFD)A 1975
4.2.8 Voidable marriage
4.2.9 Marriage with a transsexual – Gender Recognition Act 2004
4.2.10 Separation of married couples by judicial separation order (formerly decree of judicial separation)
4.3 Civil partner of the deceased
4.3.1 Proof of civil partnership
4.3.2 Void civil partnership
4.3.3 Voidable civil partnership
4.3.4 Civil partnership entered into in good faith
4.3.5 Effect of dissolution or annulment of civil partnership
4.3.6 Effect of marriage overseas between same sex couples
4.3.7 Separation order in the case of civil partnership
4.3.8 Effect on claim made by surviving spouse/civil partner by the subsequent marriage/civil partnership before the claim is determined
4.4 Former spouse of the deceased who has not remarried
4.4.1 Overseas divorce and talaq
4.4.2 Application of I(PFD)A 1975, section 14
4.4.3 Restrictions imposed in matrimonial proceedings under I(PFD)A 1975, sections 15 and 15A
4.5 Former civil partner of the deceased
4.5.1 Application of I(PFD)A 1975, section 14A
4.5.2 Restrictions imposed in proceedings for the dissolution, etc of a civil partnership on an application under I(PFD)A 1975, section 15ZA
4.6 Cohabitant of the deceased
4.6.1 Whole of the 2 years immediately before the date when the deceased died
4.6.2 Living in the same household
4.6.3 As the husband or wife of the deceased
4.6.4 Same sex cohabitants post-5 December 2005
4.6.5 Same sex cohabitants pre-5 December 2005
4.7 Child of the deceased
4.7.1 Presumption of legitimacy
4.7.2 Legitimation
4.7.3 Legitimation and same sex female partners
4.7.4 Child of void marriage
4.7.5 Adopted child
4.7.6 Child born as a result of infertility treatment
4.7.7 Mistaken transfer of sperm
4.7.8 A child who is the subject of a parental order
4.7.9 Declaration of parentage, legitimacy and legitimation
4.8 Any person treated as a child of the family
4.9 Any person (not being a person included in the forEgoing paragraphs) who immediately before the death of the deceased was being maintained either wholly or partly by the deceased
4.9.1 Being maintained
4.9.2 Substantial contribution
4.9.3 Reasonable needs
4.9.4 Otherwise than for full valuable consideration pursuant to an arrangement of a commercial nature
4.9.5 Immediately before the death of the deceased
5. FORFEITURE
5.1 Introduction
5.2 Order modifying the effect of the rule
5.3 Three-month time limit – when time begins to run
5.4 Relevant factors for modifying the effect of the Act
5.5 Further illustration of the application of section 2(2)
5.6 Does the forfeiture rule affect trusts?
5.7 Summary
6. BASIS OF THE CLAIM
6.1 Grounds on which a claim may be made
6.2 Meaning of ‘reasonable financial provision’
6.2.1 Surviving spouse/civil partner and judicially separated spouse/civil partner
6.2.2 Surviving spouses/civil partners and those who come within I(PFD)A 1975, sections 14 and 14A
6.2.3 Claim by surviving husband
6.2.4 Judicially separated spouse/civil partner and former spouse/civil partner
6.2.5 All other claimants
6.3 Meaning of ‘maintenance’
6.3.1 Maintenance in relation to claimants on state benefits
7. MATTERS TO WHICH THE COURT IS TO HAVE REGARD
7.1 Introduction
7.2 Relevant date for consideraton of section 3 factors
7.3 Criteria in I(PFD)A 1975, section 3
7.3.1 Surviving spouse/civil partner
7.3.2 Former spouse/civil partner of the deceased who has not remarried or formed a subsequent civil partnership, and cohabitants
7.3.3 Child of the deceased
7.3.4 Person treated as a child of the family
7.3.5 Any other person who was being maintained by the deceased
7.4 Financial resources and financial needs – I(PFD)A 1975,
section 3(1)(a)–(c)
7.4.1 Financial resources
7.4.2 Financial needs
7.5 Deceased’s obligations and responsibilities – I(PFD)A 1975,
section 3(1)(d)
7.6 Size and nature of the net estate – I(PFD)A 1975, section 3(1)(e)
7.7 Physical and mental disability of any claimant or beneficiary – I(PFD)A 1975, section 3(1)(f)
7.8 Any other matter including conduct – I(PFD)A 1975, section 3(1)(g)
7.8.1 The deceased’s reasons
7.8.2 Claimant’s wish to pass assets to beneficiaries of choice
7.8.3 Conduct
7.8.4 Proprietary estoppel
7.8.5 Constructive trust
7.8.6 Rule in Rochefoucauld v Boustread
7.8.7 Doctrine of mutual wills
7.9 Factors relevant to a surviving spouse, former spouse, civil partner and cohabitants
7.9.1 Age
7.9.2 Duration of marriage/civil partnership and cohabitation
7.9.3 Claimant’s contribution to the welfare of the family
7.9.4 Financial contribution
7.10 What the surviving spouse/civil partner might reasonably have expected to receive on divorce/dissolution – divorce comparison test
7.11 Factors which apply to a former spouse/civil partner or cohabitant
7.11.1 Matrimonial proceedings and disentitlement orders under I(PFD)A 1975, sections 15, 15ZA, 15A and 15B
7.12 Claim by surviving husband/cohabitant
7.13 Claims by children of the deceased and children of the family – I(PFD)A 1975, section 1(1)(c) and (d)
7.14 Claims by person maintained by the deceased – I(PFD)A 1975,
section 1(1)(e)
7.15 Assumption of responsibility by the deceased – I(PFD)A 1975,
section 3(3) and (4)
8. POWERS OF THE COURT TO MAKE ORDERS
8.1 Introduction
8.2 Periodical payments – I(PFD)A 1975, section 2(1)(a)
8.2.1 Commencement date
8.2.2 Setting aside and appropriation of property – I(PFD)A 1975, section 2(3)
8.2.3 Supplementary orders and conditions
8.2.4 Secured periodical payments order
8.2.5 Duration of periodical payments order
8.3 Lump sum order – I(PFD)A 1975, section 2(1)(b)
8.3.1 Instalment order
8.3.2 Variation of order
8.3.3 Assessing amount to be awarded
8.4 Transfer of property order – I(PFD)A 1975, section 2(1)(c)
8.5 Settlement of property order – I(PFD)A 1975, section 2(1)(c)
8.6 Acquisition of property order – I(PFD)A 1975, section 2(1)(e)
8.7 Variation of nuptial settlement – I(PFD)A 1975, section 2(1)(f) and (g)
8.7.1 Has there been a settlement?
8.7.2 How should the court exercise its discretion?
8.8 Consequential and supplemental orders – I(PFD)A 1975, section 2(4)
8.9 Interim orders – I(PFD)A 1975, section 5
8.9.1 Conditions precedent
8.9.2 Matters to be considered
8.9.3 Orders that can be made
8.9.4 Personal representatives and interim orders – I(PFD)A 1975, section 20(2)
8.10 Injunctions
8.11 Variation, discharge, suspension and revival of orders – I(PFD)A 1975, section 6
8.11.1 Who may apply?
8.11.2 Orders that can be made – I(PFD)A 1975, section 6(2)–(4)
8.11.3 Meaning of ‘relevant property’
8.11.4 Matters to be considered
8.11.5 Time limits
8.11.6 Commencement of the order
8.12 Variation and discharge of secured periodical payments orders made under Matrimonial Causes Act 1973 – I(PFD)A 1975, section 16
8.12.1 Who may apply?
8.12.2 Provisions of Children Act 1989, Schedule 1
8.13 Variation and revocation of maintenance agreements – I(PFD)A 1975, section 17
8.13.1 Meaning of ‘maintenance agreement’
8.13.2 Orders that can be made
8.13.3 Criteria to be applied by the court
8.13.4 Effect of the order
8.14 Court’s powers in relation to applications under Matrimonial
Causes Act 1973, sections 31 and 36 and CPA 2004, Schedule 5, paragraphs 60 and 73 – I(PFD)A 1975, section 18
8.14.1 Time limit
8.15 Effect, duration and form of orders – I(PFD)A 1975, section 19
9. THE NET ESTATE
9.1 Introduction
9.2 Definition – I(PFD)A 1975, Section 25(1)–(3)
9.3 Property which the deceased had power to dispose of by will
9.4 Property under general power of appointment
9.5 What may be deducted from the net estate?
9.6 Nominated property – I(PFD)A 1975, Section 8(1)
9.6.1 Insurance policies and pension schemes
9.7 Donatio mortis causa – I(PFD)A 1975, section 8(2)
9.7.1 What is donatio mortis causa?
9.8 Property held on joint tenancy – I(PFD)A 1975, section 9
9.8.1 Time limit
9.8.2 Meaning of ‘property’
9.8.3 Severance
9.8.4 Circumstances in which an order will be considered
9.8.5 Criteria which will be applied
9.8.6 Facilitating the making of financial provision/and appears to
be just
9.8.7 Meaning of ‘at the value thereof’
9.9 Foreign property
9.9.1 Jurisdiction
9.9.2 Law of succession
9.9.3 EU Regulation 650/2012
10. DISPOSITIONS INTENDED TO DEFEAT FINANCIAL PROVISION
10.1 Introduction
10.2 Inter vivos disposition
10.2.1 Condition precedent for an order
10.2.2 Meaning of ‘disposition’
10.2.3 Full valuable consideration
10.2.4 Intention of defeating a claim
10.2.5 Matters the court will take into consideration
10.2.6 Orders that can be made
10.2.7 Donee’s right to apply
10.3 Contracts to leave property by will
10.3.1 Condition precedent for an order
10.3.2 Contract
10.3.3 Intention to defeat a claim
10.3.4 Full valuable consideration
10.3.5 Matters to be considered by the court
10.3.6 Orders that can be made under I(PFD)A 1975, section 11
10.3.7 Where money has been paid
10.3.8 Where money has not been paid
10.3.9 Position of donee who is a trustee
10.3.10 Restrictions on the court’s powers
10.3.11 Rights of persons to enforce the contract
11. PERSONAL REPRESENTATIVES AND TRUSTEES
11.1 Introduction
11.2 Liabilities under the I(PFD)A 1975
11.3 Protection afforded by I(PFD)A 1975, section 20
11.3.1 Responsibilities and duties after proceedings have been issued
11.4 Trustees
12. PROCEDURE
12.1 Introduction
12.2 Pre-action Protocol
12.3 Venue
12.4 Claim form
12.4.1 Contents
12.4.2 Time limits
12.4.3 Application under I(PFD)A 1975, section 9 for severance of joint tenancy
12.4.4 Application under I(PFD)A 1975, sections 10 and 11 to set aside transactions made by the deceased with the intention of defeating or reducing a claim under the Act
12.4.5 Claimants
12.4.6 Defendants
12.5 Claimant’s witness statements/affidavit
12.6 Party under disability
12.7 Service
12.8 Acknowledgement of service and defendant’s evidence
12.8.1 Position of personal representative who is a defendant
12.8.2 Other defendants
12.8.3 Claimant’s reply
12.9 Interlocutory matters, directions and case management
12.10 Disclosure
12.11 Attempts/offers to settle
12.11.1 CPR Part 36 offer
12.11.2 Calderbank offers
12.12 Hearing
12.13 Endorsement of memorandum on grant
12.14 Drawing up and service of orders
12.15 Subsequent applications
12.15.1 Procedural guide
13. APPEALS
13.1 Introduction
13.2 Permission to appeal
13.3 Route of appeal
13.4 Time limits
13.5 Stay of execution
13.6 Grounds of appeal
13.7 Procedure
13.7.1 Appellant’s notice
13.7.2 Amendment of appeal notice
13.7.3 Respondent’s notice
13.8 Procedural tables
Appeal from a county court judge or High Court to the
Court of Appeal
Appeal to the Supreme Court
APPENDICES
Precedents
A1 Application for a postal search of the probate records of England and Wales, Form PA1S
A2 Example claims to be included in the Part 8 claim form
A3 Witness statement by the claimant (a surviving spouse)
A4 Witness statement of the personal representative
A5 Witness statement by a cohabitant of the deceased
A6 Witness statement of an adult person treated as a child of the family
A7 Draft orders
Legislation
A8 Inheritance (Provision for Family and Dependants) Act 1975
A9 Civil Procedure Rules, Part 57 – Probate and Inheritance, Extract
A10 Civil Procedure Rules, Practice Direction 57 – Probate
Practice Guidance
A11 ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (ACTAPS Code)
Index

Series: Wildy Practitioner's Guide

A Practitioner's Guide to Wills 5th ed ISBN 9780854902965
Published January 2023
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£95.00
A Practitioner's Guide to Probate Disputes 2nd ed ISBN 9780854902903
Published March 2022
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£85.00
A Practitioner's Guide to Probate and the Administration of Estates 4th ed ISBN 9780854902361
Published June 2018
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£85.00
A Practitioner's Guide to Inheritance Act Claims 3rd ed ISBN 9780854902224
Published August 2017
Wildy, Simmonds and Hill Publishing
Out of print
A Practitioner's Guide to Wills 4th ed ISBN 9780854902040
Published January 2017
Wildy, Simmonds and Hill Publishing
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A Practitioner's Guide to Probate Disputes ISBN 9780854901371
Published January 2016
Wildy, Simmonds and Hill Publishing
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A Practitioner's Guide to Mental Health Law ISBN 9780854901142
Published October 2014
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£75.00