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Inheritance Act Claims

Law, Practice and Procedure

£380.00

"a marvellous book to which I will be subscribing and no doubt which will never be on my shelf as my colleagues queue up [to] borrow it"

Trust Quarterly Review

Inheritance Act Claims is the only updateable service devoted to claims under the Inheritance (Provision for Family Dependants) Act 1975 and is now available as either a print or online subscription. The interrelationship of claims under the 1975 Act and other areas of practice means that the law is constantly evolving. This clear and comprehensive work combines detailed explanatory commentary with invaluable precedents, case summaries and useful source material including consolidated legislation.

 A subscription to Inheritance Act Claims is:

Up to date
This work is updated twice annually to take account of all changes relevant to the 1975 Act, ensuring you are always kept up to date with developments in the field.

Practical
The text is supplemented by checklists, statutes, CPR, tables and precedent materials, which provide you with everything you need to advance your client's case successfully.

 Authoritative
 The author is leading chancery barrister, praised in Chambers & Partners for "knowing his subject thoroughly". He is assisted by a team of contributors with extensive experience not only in these claims, but also in divorce, tax and international trusts, ensuring that all angles are covered.

 Inheritance Act Claims remains the most comprehensive work available on this increasingly important area of law and is an invaluable resource for private client solicitors, trust practitioners and lawyers as well as Chancery barristers and all family lawyers.

To arrange your FREE 14-day trial to the online service or to find out how a print or online subscription to Inheritance Act Claims will benefit your day-to-day work contact our Account Management Team today.

Print Subscription Information
Looseleaf
£380.00 main work inc mainland UK p&p (there is an additional cost for non-UK mainland p&p)
2 updates per year (approx. £155.00 each - invoiced on publication). You will continue to receive updates until you countermand this.

Contents

  • Introduction
  • Frequently Encountered Issues Arising in 1975 Act Claims
  • The Practical Approach to Claims: Conducting the Case
  • The Practical Approach to Claims: Part 2
  • Who is an Eligible Claimant?
  • Problems which may Affect the Claims of Applicants who would Otherwise be Eligible
  • What is Reasonable Financial Provision?
  • The Matters to which the Court Must Have Regard under Section 3 of the 1975 Act
  • Special Factors under Section 3
  • Problems with the Net Estate
  • Anti-Avoidance
  • Assessing the Value of Claims: What is the Claim Worth?
  • The Position of the Personal Representative in Claims under the 1975 Act
  • The Powers of the Court
  • Taxation and the 1975 Act
  • Procedure, Hearings and Costs
  • The Mediation of the 1975 Act Claims
  • 1975 Act Claims, Will Drafting and Other Advice
  • Statutory Materials etc
  • Checklists and Questionnaires
  • Precedents
  • Tables
  • Case Summaries
"this book will provide valuable assistance to the practitioner in keeping on top of developments ... a convenient one-stop reference point"
 
Solicitors Journal

 
"the moment Andrew Francis' book landed on my book shelves in chambers, it disappeared being borrowed by colleagues who returned with increasingly enthusiastic reviews ... easy to use ... a marvellous book to which I will be subscribing and no doubt which will never be on my shelf as my colleagues queue up [to] borrow it ... an absolute must for anyone who ever practises in this area and Andrew Francis and Jordans should be warmly congratulated."

 Trust Quarterly Review

 
"a sure-footed guide ... exceedingly well laid out and user-friendly, practical in its approach ... I can only add my endorsement to the praise of Lord Walker of Gestingthorpe in his foreword: 'It is likely to be of real assistance to all who practise, either regularly or occasionally, in this difficult area of private client work.'"

 Trust and Estate Practitioner
Andrew Francis Barrister, Serle Court, 6 New Square, Lincoln's Inn

 With a foreword by Lord Walker of Gestingthorpe

 With contributions from Miranda Allardice Barrister, 5 Stone Buildings, Lincoln's Inn, Keith Gordon Barrister, Temple Tax Chambers and Jonathan Fowles Barrister, Serle Court, 6 New Square, Lincoln's Inn

Chapter 7 The Matters to which the Court Must Have Regard under Section 3 of the 1975 Act

Overview

[1]

Having considered the subjects covered in the previous chapters, the claimant's adviser should have reached a conclusion on the following matters:

– eligibility

– whether a claim can be brought against an effective defendant; ie has a grant been obtained?

– whether the claim is within time, or whether permission will be required

– what standard of reasonable financial provision is appropriate

– how any potential claim is to be funded (ie on a provisional basis – even before assessment of merits).

It is now that the adviser has to embark on what has often been referred to as a “two stage” task. This task is carried out by asking two questions. These are:

(1) Has the disposition of the deceased's estate failed to make reasonable financial provision for this claimant?

(2) If the answer to question (1) is yes, to what extent should the court exercise its powers under the 1975 Act to make reasonable financial provision for this claimant?

To answer both of these questions, s 3 of the 1975 Act directs the court to have regard to all the matters set out in that section: “The s 3 criteria”. None may be ignored (unless the special matters in subss (2)–(4) do not apply to the class of claimant in question) and the 1975 Act does not state whether any particular matter is to be given a greater, or lesser degree of importance when compared with its brethren in that section.

The importance of considering all of the s 3 criteria and giving the appropriate degree of weight to each of the criteria was emphasised in Re Hancock and in Espinosa v Bourke and most recently by the Court of Appeal in Ilott v Mitson.

What this chapter does is examine each of the s 3 criteria.

Chapter 13 The Powers of the Court

Overview

[1]

There are four principal aspects to a consideration of the court's powers to make orders in 1975 Act claims. This chapter considers those powers. It will be assumed that the court is being asked to do more than make no order on the claim, or to dismiss it. The powers of the court as regards costs are considered below and also in Chapter 15.

The four aspects are:

(1)The broad powers conferred by s 2 of the 1975 Act.

(2)The specific, or ancillary powers conferred by s 2 of the 1975 Act as part and parcel of any order made under the broad powers referred to at (i) above. This includes any restriction on any order, such as that relating to periodical payments ceasing on remarriage in the circumstances set out in s 19(2) of the 1975 Act.

(3)The powers conferred by ss 16, 17 and 18 of the 1975 Act in relation to orders made under the Matrimonial Causes Act 1973, or under maintenance agreements during the lifetime of the deceased against whose estate the claim is made.

(4)Specific powers to make orders including the power to vary orders already made, the power to preserve property forming part of the net estate during litigation and directions as to incidence.

Mention will be made of the enforcement powers of the court. The powers of the court in relation to joint property are dealt with in 9[17]. Procedural matters are principally dealt with in Chapter 15.1Chapter 10 deals with the powers of the court where the anti-avoidance provisions of ss 10 and 11 apply. Chapter 14 deals with the tax effect of orders made under the 1975 Act.

The law is stated as at March 2015
Update 25

As the Preface to the 24th Update foretold, this update coincides with the 40th anniversary of the commencement of the 1975 Act on 1 April 1976.

The observations we made in that Preface about the contrast between society 40 years ago and in 2016 need not be repeated. It is sufficient to note that in its 40 years of existence the 1975 Act has been a most beneficial piece of legislation and it would be hard to imagine succession law without it. Whether the next 40 years will see testamentary freedom eroded and replaced with defined succession rights based on civil law principles remains to be seen. In this respect much may depend on the outcome of the Referendum on the UK’s membership of the European Union in June.

There is another significant event that should be marked in this Preface. On 2 March 2016 the Supreme Court gave the charities interested in Mrs Jackson’s estate permission to appeal the decision of the Court of Appeal given on 27 July 2015 in Ilott v Mitson. No doubt very interesting questions will arise in the hearing of that appeal in the Supreme Court. Without wishing to anticipate any of them, the interpretation of the maintenance standard could well be of significance, as may be the need to consider the way in which the claimant’s award should be structured so that the claimant’s entitlement to state benefits is preserved. Finally, there are many cases where the claimant, as an adult child of the deceased, has been estranged from the latter, for whatever reason. How far should that fact and the reasons for it be relevant, either generally, or within s 3(1)(g) of the 1975 Act?

This is the first time that the 1975 Act will be scrutinised by the Supreme Court. It is believed that the House of Lords never heard an effective appeal where the 1975 Act formed the basis of the claim, nor where its predecessor, the Inheritance (Family Provision) Act 1938, was so engaged.

Apart from these milestones there has been little to report in the comparatively brief interval between this update and the last one at the end of 2015. We have continued the task of updating the text where needed, paying particular attention to small procedural changes, and developments in costs such as unbundling legal services. We have also updated the precedents in Appendix 3. On the issue of international succession rights, the recent decision of Henry Carr J on 15 February 2016 in Winkler and Another v Shamoon and Others [2016] EWHC 217 (Ch) affirms the principle that a claim that involved entitlement to succeed to the deceased’s estate was a “succession” matter and excluded from Council Regulation 44/2001, Art 1(2)(a). The inclusion of this decision in the text at 9[17] footnote 20 was regrettably not possible because of proof and printing dates, but it will be referred to in the text in the 26th Update.

As in the past, we invite contributions and comments to us directly, or to Tony Hawitt and his colleagues at the publishers, now part of LexisNexis. We thank them for all their assistance in preparing for the publication of this update. On a final note referring to anniversaries, this update marks the entry of this work into its 13th and thus teenage years. We hope they will not be too troubled!

We have endeavoured to state the law as at 1 March 2016.


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