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Speaking with the Judge


Protecting Your Rights

Where someone who was domiciled in England or Wales dies, then any person who falls into one of the five categories specified in the Inheritance (Provision for Family and Dependants) Act 1975 can apply to the court for money from the deceased’s estate on the grounds that the effect of the Will, or any intestacy in the absence of any Will, is such that that person has not been provided with reasonable financial provision from the deceased.
The four relevant categories for cases I deal with usually  are:
(a)     former spouse or civil partner;
(b)     a child; and
(c)     ‘any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased’;
(d)     any person who was cohabiting as husband and wife with the deceased for two years prior to the death of the deceased.
The definition of reasonable financial provision is: ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.
Although the Act refers to maintenance, the court has power to order not only payment of maintenance out of the estate but also payment of a lump sum or a transfer of property order.
The Act provides that a person shall be treated as being maintained by the deceased ‘either wholly or partly … if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that person’.
In considering what order should be made, the court is required to have regard to the following matters, namely:
(a)     the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
(b)     the financial resources and financial needs which any other applicant for an order under the Act has or is likely to have in the foreseeable future;
(c)     the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
(d)     any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate;
(e)     the size and nature of the net estate of the deceased;
(f)      any physical or mental disability of any applicant for an order;
(g)     any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
When considering what money should be paid out of the estate to a spouse or former spouse of the deceased, the court must have regard to:
(a)     the age of the applicant and the duration of the marriage;
(b)     the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.
The court is also required to take into account an applicant’s earning capacity, financial obligations and responsibilities.
The purpose of the Act is to ensure that someone who was previously dependent on the deceased does not suffer hardship on the death of the deceased by no longer receiving financial support.
The Act is not about what other people may believe to be morally right or just.
To start the court proceedings, you would have to sign a statement setting out the facts of your case, which I can prepare for you.
The court considers what orders are necessary for the future conduct of the case and all necessary documents have to be listed and disclosed to the others involved in the case. It is therefore important that you keep all relevant documents including any financial documents.
After all relevant documents have been exchanged, it will then be necessary to instruct a barrister to advise as to whether or not the case is ready. It will also be necessary to obtain a valuation of any properties. Only then will it be possible to obtain a final hearing date.
Because of severe delays at court, it could be at least one year from the date that court proceedings are started until the final hearing.
Even if it is necessary to start court proceedings, that does not mean that the case must go all the way to a final hearing. Most cases are resolved by agreement long before a final hearing.

Inheritance (Provision for Family and Dependants) Act 1975: About
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