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.
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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.
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.
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.
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Update 22 (October 2014)
This has been a significant update. The principal reason for this is the coming into force on 1 October 2014 of the main provisions of the Inheritance and Trustees’ Powers Act 2014 (“the 2014 Act”). The changes to the 1975 Act are now set out in the text. They are all significant and must not be overlooked. It is important to note that these changes only apply to claims under the 1975 Act made in respect of the estate of the deceased who died on or after 1 October 2014. The text of the 1975 Act set out in Appendix 1 has, therefore, retained the “old” text, which will continue to apply to claims made in respect of earlier deaths for the foreseeable future. We have also brought in the major changes to the intestacy rules and where necessary we have referred the changes wrought by the 2014 Act to trusts and trustees’ powers.
Taken as a whole the changes to the law made by the 2014 Act are welcome, and in respect of the law of intestacy, long overdue.
We do, however, have two points of concern arising from the 2014 Act, which we feel we ought to express here. They concern in the first instance a failure to change the law and the second instance a change in the way in which the “deemed divorce test” is to be approached under s 3(2) of the 1975 Act.
As to the first concern, this relates to the threshold requirement that the deceased must have died domiciled in England and Wales at the date of death. The 2014 Act does not change this. Early versions of the Bill did include alternative threshold criteria, which largely reflected the recommendations in the Law Commission’s Report, but these were abandoned early on in the legislative journey. This omission is an unfortunate failure to widen the jurisdictional basis on which a claim might be made. The authors have experience of expensive and lengthy litigation determining the preliminary issue of domicile. As just mentioned, the Law Commission recommended change and postulated the additional bases of habitual residence and/or where there was property in the jurisdiction. These tests are far better suited to the 21st century where lifestyles are far removed from those of 100 or more years ago and where domicile was far more relevant both in concept and in reality. However, the government has not taken this reform forward. In the 21st century it can be argued that the domicile threshold sets the bar too high for an applicant seeking to secure provision under the 1975 Act. We feel an opportunity has been lost here.
The second concern relates to the divorce fiction in s 3(2) of the 1975 Act. The amendment of s 3(2) by the 2014 Act appears to loosen the bond between the provision that may be made for a divorcing spouse and that which may be made for a surviving spouse. Reference to the divorce fiction is now qualified as follows: “but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made by an order under S2”. The original impetus for the reference to the divorce sphere was expressly to ensure that the surviving spouse did not receive less than a divorcing spouse. It would be a retrograde step if this amendment resulted in beneficiaries seeking to argue that reasonable financial provision amounted to an award substantially less than that which the applicant would have secured on a divorce.
Moving on from the 2014 Act we should note that we have revised the text to take into account such recent cases that relate to the 1975 Act (which are few in number) and the changes to the CPR, in particular in Part 57 where the effect of the 2014 Act as to the removal of a need for a grant in 1975 Act claims is taken into account.
In terms of the future, and specifically in respect of nuptial agreements, the Law Commission’s Report, Matrimonial Property, Needs and Agreements (No 343), was published on 27 February 2014 just after we wrote the Preface to the 21st Update. The Law Commission recommended that, subject to provision being made for a spouse’s needs that court should recognise nuptial agreements. There is no indication yet as to whether this reform will be adopted. However on the ground there are an increasing number of nuptial agreements being entered into. In our sphere of interest the parties may be embarking on a second marriage and anxious to protect their respective children and their inheritance. The existence of a nuptial agreement, while not binding, can be influential. It will fall to be considered under the 1975 Act as part of the application of the divorce fiction and also as consideration under s 3(1)(g).
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
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
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"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
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