5946 Study notes

Study notesCore Programme 5946

Private Client: Inheritance Act 1975: Dependants and Delay

8 January 2016

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8 January 2016Core Programme 5946

Contents

Core Programme 5946

Private Client: Inheritance Act 1975: Dependants and Delay 4

Discussion Points 12

Test & Feedback 13

Future Subjects 15

Future Programmes 16

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Study notes

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Core Programme 5946 8 January 2016


Target AudienceThis programme is aimed at all private client practitioners.

Classification for CPDIntermediate; Update

SynopsisThe Inheritance (Provision for Family and Dependants) Act 1975 (the Act) enables dependants to claim against the estate of a deceased person where they can demonstrate that the Will, or the law of intestacy, does not make reasonable financial provision for them.

In this programme we consider:

• IlottvMitson (2015), where the Court of Appeal considered at length what financial provision should be made for an adult child who had been excluded from her mother’s Will, and how the court should structure an award to improve the position of the applicant

• BergervBerger (2013), where the Court of Appeal gave guidance for when applications under the Act are made out of time

Introduction

Financial Provision for Dependants

• LilleymanvLilleyman (2012) — Comment

• KaurvDhaliwal (2014) — Comment

• LimvWalia (2014)

Delay

Section 10 – Dispositions Intended to Defeat Applications for Financial Provision

• DellalvDellal (2015)

Conclusion

Brie Stevens-Hoare QCBarristerHardwicke

Andrew LeakeyPartner and Head of Dispute Resolutions and ProbateStephensons Solicitors

Contributor Details

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INTRODUCTIONThe Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) enables certain categories of person – most notably spouses and civil partners, former spouses and civil partners, children, and other dependants – to make a claim against the estate of a deceased person in circumstances where they can demonstrate that the disposition of the deceased’s estate effected by their Will, or the law relating to intestacy, is not such as to make reasonable financial provision for them.

A claim under the 1975 Act must be made within six months of the date on which representation in respect to the estate of the deceased is first taken out, in default of which a claim can only be pursued with the permission of the court.

FINANCIAL PROVISION FOR DEPENDANTSSection 1 of the 1975 Act confers the right on, among others, a child of the deceased to apply for an order under s.2 of the 1975 Act if the Will of the deceased or the intestacy rules do not make reasonable provision for the said child. Section 1(2) of the 1975 Act provides that, in the case of a child, ‘reasonablefinancialprovision’ means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his/her maintenance. Thus, a claim under the 1975 Act brought by or on behalf of a child is limited to an award for maintenance – in contrast to awards made under the 1975 Act for spouses or civil partners, which are not so limited.

The meaning of ‘maintenance’ is not defined in the 1975 Act itself, but is accepted as meaning the amount required to meet the day to day living expenses of the applicant. In ReDennis(Deceased) (1981) it was described as:

“…onlypaymentswhich,directlyorindirectly,enabletheapplicantinthefuturetodischargethecostofhisdailylivingatwhateverstandardoflivingisappropriatetohim.Theprovisionthatistobemadeistomeetrecurringexpenses,beingexpensesoflivingofanincomenature.Thisdoesnotmeanthattheprovisionneedbebywayofincomepayments.Theprovisioncanbebywayofalumpsum,forexample,tobuyahouseinwhichtheapplicantcanbehoused…”

Section 2 provides that the court has a wide variety of orders which it can make, including periodical payments, lumps sum, the transfer of property, orders for the acquisition of property, or varying existing settlements and

orders.

When determining whether the Will is not such as to make reasonable financial provision for the applicant, the court must have regard to the factors set out in s.3, namely:

• the financial resources and financial needs which the applicant has or is likely to have;

• the financial resources and financial needs which any other applicant for an order under s.2, or any beneficiary has or is likely to have;

• any obligations and responsibilities which the deceased had towards any applicant or any beneficiary;

• the size and nature of the net estate;• any physical or mental disability of any applicant or any

beneficiary;• 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.

In addition, in the case of a claim made by a spouse or civil partner, the court shall have regard to the age of the applicant and the duration of the marriage or civil partnership, and 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.

LilleymanvLilleyman (2012)In the case of LilleymanvLilleyman (2012), Mr Justice Briggs had to grapple with a claim for provision under the 1975 Act brought by the second wife of the deceased, to whom he had been married for only 2.4 years at the date of death, albeit this had been preceded by a period of co-habitation of around 1.5 years. During their time together the applicant and the deceased both made financial contributions to fund their lifestyle and the acquisition of a matrimonial home. However, given his wealth, the deceased contributed more.

The defendants were the deceased’s two sons from a previous marriage, who were the executors and principal beneficiaries under the deceased’s Will. Relations between the applicant and the defendants were strained, primarily because of their irreconcilable views as to how much the applicant should have received under the Will bearing in mind (a) the short time for which the applicant and the deceased had been married; and (b) the fact that, because they were married, regard had to be had to the award that might have been made to the applicant had the deceased not died but rather he and the applicant had divorced as per the requirements of s.3(2) of the 1975 Act.


Legal Editorial Team

Katy Morgan SmithWriter/PresenterSolicitor, Legal Network Television, The University of Law

Sarah DyasLegal EditorSolicitor, Legal Network Television, The University of Law

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When the deceased died he left an estate worth in the region of £6 million, the bulk of which was represented by shareholdings in three private companies set up by the deceased before he and the applicant had met. The deceased directed that most of the estate should go to his sons, with only chattels, small gifts, and limited and conditional rights of occupation in respect of the former matrimonial home and a holiday home given to the wife. The deceased had, however, set up an annuity for the wife which would generate £378 per calendar month, which could be added to her existing income of around £11,000 per annum, and other assets she owned valued at around £400,000.

The essential difference between the parties was whether reasonable provision for the applicant ought to be determined solely by reference to her reasonable needs (including her need for financial security for the rest of her life) as the defendants argued, or whether, as the applicant argued, reasonable provision called for her to be given a substantial share of matrimonial property in excess of her reasonable needs.

Mr Justice Briggs began his consideration of the application by summarising the law that governs the division of assets upon divorce, and how this is impacted upon where the marriage is question is one of a relatively short period:

“First,thefundamentalprinciplewhichilluminatesallthedetailsisthatamarriageisnowrecognisedtobeanessentiallyequalpartnership.Inconsequence,thedivisionoftheavailablepropertyuponbreakdownofthemarriagemustbeconducteduponthebasisoffairnessandnon-discrimination….Butequalityoftreatmentdoesnotnecessarilyleadtoequalityofoutcome.”

Giving the three requirements as financial needs, compensation, and sharing, in that order, Briggs J observed that meeting parties’ financial needs frequently exhausts the available property. Compensation deals with disparity between the parties arising from the marriage, and sharing is applied when there is property still available after the first two requirements have been satisfied. In his judgment Briggs J assimilated principles derived from MillervMiller (2006), which summarised the effect of WhitevWhite (2001), and also CharmanvCharman (2007).

WhitevWhite established the principle of ‘equal sharing’, but in MillervMiller the impact of a short marriage on this principle was discussed:

“Thisprincipleappliesasmuchtoshortmarriagesastolongmarriages:seeFostervFoster(2003).Ashortmarriageisnolessapartnershipofequalsthanalongmarriage.Thedifferenceisthatashortmarriagehasbeenlessenduring.Inthenatureofthingsthiswillaffectthequantumofthefinancialfruitsofthepartnership.”

Lord Nicholls explained that the source of the asset may be a good reason for departing from equity.

It was submitted, on behalf of the defendants, that the governing criterion in ‘short marriage–big money’ cases under the 1975 Act, was that provision should be made for the surviving spouse’s needs so as to give them financial security for the rest of their life, but no more. Mr Justice Briggs disagreed with this analysis and held that in appropriate cases considerations of compensation and sharing were also relevant when considering both the divorce cross-check in s.3(2) and in the identification

of reasonable financial provision more generally. He also maintained that the divorce cross-check should be treated neither as a floor nor a ceiling in relation to the relief available under the 1975 Act, nor as something which requires a meticulous quasi-divorce application to be analysed side by side with the application of the separate provisions in s.3. Rather it is, like all the other matters to be taken into account under s.3, of infinitely variable weight on the facts of each particular case.

As to the s.3 factors, Mr Justice Briggs assessed these as follows:

• The applicant needed an income of £31,770. Currently she only received an income of just over £11,000

• There were no other applications for financial provision which needed to be considered

• The deceased’s sons, as the other beneficiaries, had no needs that ought to be met from the estate, save for the need to ensure that the assets of the family business were not subject to undue attrition, in order to enable them to continuing providing the sons with careers and a source of income

• The deceased had a legal obligation to make reasonable financial provision for the applicant and also had a moral obligation not to unnecessarily undermine his sons careers in the family business

• The estate was valued at just slightly in excess of £6 million

• Neither the applicant or the sons had any physical or mental disabilities

• Neither the applicant or the sons were guilty of any misconduct

• The applicant was 66 at the time of the claim and had been married to the deceased for 2.4 years, and in a de facto marriage with him for just under four years

• Although the sons had not derived any benefit from the applicant’s marriage to their father, the deceased had, because the applicant had given up her job in order to spend more time with him, and take care of the family home

• Applying the divorce checklist, the value of the matrimonial assets on divorce would have been in the region of £1,475,000. Thus, on a full sharing basis, the principle of equality would have seen the applicant awarded £737,500 to include her share in the former matrimonial home (£572,500 were her share in that property to be excluded).

It was ultimately unnecessary for the judge to decide whether reasonable financial provision had therefore been made for the applicant, because both parties agreed that, on the facts, it had not. However, the parties could not agree about what ought to happen in order to ensure that such provision was now made. Mr Justice Briggs therefore made this decision for them and in doing so managed to come up with a settlement that not only met the applicant’s needs but which also preserved the value of the family business, which he acknowledged should substantially be excluded from the pool of assets available to meet the applicant’s needs given that it could not be classed as matrimonial property.

The applicant’s income requirement was £31,770 per annum, which meant that there was a shortfall between the income she currently received and what she needed of some £20,533. Therefore, on Duxbury terms, a payment of £235,000 from the estate was needed to make up this amount.

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fullmeasure”.

Comment

This decision reinforces earlier decisions on this issue, which make it clear that whether or not a couple can be said to be cohabitating is dependent on the facts of the case and requires consideration of both the internal arrangements between them and the external way in which they presented their relationship. In this case it was clear that the applicant and the deceased were committed to one another and provided support to one another as though they were husband and wife.

For another decision on the rules concerning the cohabitation requirement under the 1975 Act, practitioners should refer to the case of SwetenhamvWalkley&Bryce (2014) where the Court held that a couple who had cared for and supported each other for 30 years were in effect cohabitating under the terms of the 1975 Act, notwithstanding the fact that the deceased had maintained his own home where he often slept and never mixed his finances with that of the applicant. The deceased had in fact spent nearly every day at the applicant’s house, together with many nights, and they had provided mutual care and support to one another in much the same way as a husband and wife might do, and it appeared both internally and externally that they were very much a couple.

LimvWalia(2014)The case of LimvWalia(2014) concerned a fixed-term life insurance policy taken out by the deceased and her first husband, from whom she was separated. After separating, the deceased had formed a new relationship with a man with whom she had a child. The deceased was then diagnosed with a terminal illness and died. In accordance with the terms of the life insurance policy, upon her death the proceeds of the policy (some £113,000) were paid out to her husband. The deceased died intestate and it was maintained that the rules governing intestacy were not such as to make reasonable financial provision for her child. Accordingly an application for such provision to be made was brought under the 1975 Act.

Whilst the life insurance policy obliged the insurer to pay out the sum insured on the first death to occur of either the deceased or her husband, it also provided that the insurer would bring forward that payment on proof that either the deceased or her husband were suffering from a terminal illness. By way of preliminary issue, the court was asked to determine whether, because of this provision, the deceased was entitled to a share in the payment received by her husband and which should therefore be treated as part of her estate under s.9(1) of the 1975 Act.

The judge at first instance decided that the deceased had a severable interest in the terminal illness benefit. As the terminal illness benefit was held jointly, it was severable because it was to be paid to both policyholders, with no provision included for it to be paid to just one of them. This is in contrast to the death benefit which was held separately not jointly given that it could only be paid to the survivor under the terms of the policy and was thus not severable. On the basis that the judge concluded that the terminal illness benefit was severable, he went on to hold that immediately before her death the deceased was beneficially entitled to a joint tenancy under the policy to benefit from her terminal illness before her death, and accordingly ordered that half of the payment received by the husband

Taking into account all the relevant circumstances, Briggs J ruled that the applicant should receive £500,000 from the estate, to include the estate's half interest in the former matrimonial home and (at the wife's election) either the estate's half interest in the holiday home or an equivalent lump sum. The estate was also required to transfer a third property to the wife (an apartment occupied by one of her sons) on the basis that the Court considered this to be beneficially hers in any event as a result of contributions she had made to fund its acquisition, but if not, a reasonable provision under the 1975 Act.

Comment

This case is of note because it concerns a big money – short marriage situation, and as these are becoming increasingly common, it provides useful guidance on the approach to be taken. In particular, the case suggests that a short marriage may well mean that the principle of equality in the division of assets will be departed from and non-matrimonial property will not be shared.

The case is also of note because it makes clear that where a family business is involved, only the active growth of the business during the currency of the marriage (i.e. growth attributable to positive efforts on the part of one of the parties) is likely to be taken into account when calculating how much of the value of the business should go into the matrimonial pot.

KaurvDhaliwal (2014)In KaurvDhaliwal (2014), the applicant and the deceased had been together for more than two years but had not always lived together under the same roof for a variety of reasons, including a lack of suitable accommodation to house them both, and the need for the deceased to return to his native India for family reasons. However, they had been very open about their relationship, had lived under the same roof together whenever circumstances had permitted, and had also got engaged.

Following the deceased’s death, the applicant argued that he had failed to make reasonable provision for her and accordingly sought to claim under the 1975 Act on the basis of two years cohabitation. However, the deceased’s sons disputed her ability to bring such a claim on the basis that she was unable to demonstrate two years continuous cohabitation in the same household. It was common ground that they had cohabited for one year and 49 weeks immediately prior to the deceased’s death, but it was alleged that the shortfall of three weeks needed to satisfy the statutory requirement for cohabitation meant that the applicant’s claim was bound to fail.

On appeal, Mr Justice Barling held that the judge at first instance had been entitled to conclude that the applicant and deceased’s settled relationship had continued throughout the disputed period until the deceased’s death. It was relevant that throughout that period the parties had been together, save for during the short period of time when the deceased visited India. Their initial settled establishment following their engagement had been interrupted for family reasons unrelated to the ongoing state of their own relationship.

He further held that the conclusion reached by the judge at first instance was not dependent upon a finding that the applicant and deceased were living under the same roof at any particular time or place within the disputed period, but rather that their qualifying relationship had continued “in

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should be brought into account in her estate for the benefit of her child.

The husband appealed, arguing that the policy provided that the benefit would be paid out on the first death of one of the lives insured unless it had previously been paid out following the receipt and acceptance of a terminal illness claim. As the deceased had not made a terminal illness claim, it followed that at the moment before her death she was not beneficially entitled to a right to benefit from her terminal illness and accordingly it followed that the right to receive any payment made under the policy would accrue to him.

The Court of Appeal held that under s.9(1), the judge had to determine whether the deceased had a severable interest in the terminal illness benefit under the policy and, if she did, the value of that interest immediately before she died. He had, in the Court’s view, correctly decided that although the death benefit was not held jointly, the terminal benefit was held on a joint tenancy and that the deceased had a severable interest in that benefit. However, the right to receive the terminal illness benefit was dependent on an appropriate claim being made. In this case, no such claim had been made which meant that the insurer had been justified in paying the death benefit to the husband. The value of the severable interest in the terminal illness benefit had to be calculated immediately prior to death, and because immediately prior to death the deceased had failed to make an appropriate claim, it followed that the value of the severable interest was nil.

DELAYSection 4 of the 1975 Act provides that an application for an order under s.2 shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out. Where an application outside of the six month time period is proposed, the applicant will need the court’s permission before proceeding.

In ReSalmon(Deceased) (1981), Megarry V.C. identified six guidelines for the exercise of the court’s discretion to extend the six month time limit:

• The court’s discretion to extend the time limited is unfettered

• It is up to the applicant to establish grounds for an extension

• The court should consider how promptly and in what circumstances the applicant has attempted to bring the application

• The court should consider whether negotiations were commenced within the six month time limit

• The court should consider whether the estate has been distributed

• The court should consider whether the refusal of an extension of time would leave the applicant without a remedy

In addition to these guidelines, the courts have made it clear that it will also be relevant to consider the prospects of the applicant’s claim under the 1975 Act succeeding if an extension of time were to be granted. In essence, the stronger the applicant’s substantive claim, the more likely it is that the court will grant an extension of time in order to enable it to be brought.

SECTION 10 – DISPOSITIONS INTENDED TO DEFEAT APPLICATIONS FOR FINANCIAL PROVISIONIf the court is satisfied that, less than six years before the date of death, the deceased made a disposition with the intention of defeating an application for financial provision under the 1975 Act and that full valuable consideration for the disposition was not given, the court may order the donee to provide, for the purpose of the making of that financial provision, such sum of money or other property as may be specified.

DellalvDellal (2015)The case of DellalvDellal (2015) highlights difficulties in trying to use s.10 in order to bring assets back into an estate, and also provides a useful analysis of the approach to be taken to summary judgment and strike out applications in cases with an international element.

The application for financial provision was brought by the deceased’s second wife, to whom the deceased had effectively left all of his estate via his Will. In 2012, the deceased was stated to be worth £445 million. However, when he died, later that year, the disclosed assets of his estate only amounted to £15.4 million. The applicant said this was an absurd presentation of wealth at the date of death, and maintained that in the period before death he must have given most of it away to the nine children he had from previous relationships, and to his sister. This, she alleged, must have been done with the intention of defeating any claim for provision that she might bring under the 1975 Act, thereby justifying the making of an order under s.10 of the 1975 Act.

Section 10 is similar in its language to s.37 of the Matrimonial Causes Act 1973, although there are distinctions between the two provisions. The effect of an order under s.37 is to annul the transaction. Moreover, the bad intention to defeat the principal ancillary relief claim is presumed for transactions done within the three year period before the avoidance claim. There is no time limit on attackable transactions. By contrast, a claim under s.10 of the 1975 Act does not affect the validity of the disposition. If relief is granted then it takes the form of a money judgment against the disponee to pay a specified sum to the estate. There is no presumption as to the necessary bad intention, and there is a six year time limit on attackable transactions.

In this case, the six year period began on 28 October 2006. Accordingly, in order to succeed in her application for an order under s.10, the applicant had to show at trial as against each separate defendant:

• at least one disposition was made by the deceased in favour of the defendant in question after 28 October 2006;

• where it was said that the disposition was to a trustee, that the trustee actually held some money or property deriving from the disposition;

• the disposition was done by the deceased with the intention of defeating the applicant’s claim for financial provision under s.2 of the 1975 Act;

• a payment order would facilitate the making of an award for financial provision under the 1975 Act in favour of the applicant;

• where, as in this case, one or more of the defendants is out of the jurisdiction, that the order for payment would be enforceable in the foreign land;

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• the court should exercise its discretion to make an order for a payment to the estate.

The claim was defended by the deceased’s children, a grandchild, and his sister. They applied for an order summarily terminating the s.10 application without a trial, either through a strike out order under Civil Procedure Rule (CPR) 3.4(2) or by summary judgment under CPR 24.2, and for orders giving the applicant leave to serve out of the jurisdiction to be set aside.

The defendants argued that they were justified in seeking the aforementioned orders for the following reasons:

• the applicant had not identified any dispositions between October 2006 and October 2012 or any matters to prove the necessary bad motive;

• she had no prospect of success at trial;• the orders for service out of the jurisdiction were flawed

by want of full and frank disclosure.

The Court noted that in 2008 the applicant and deceased had come close to agreeing a post-nuptial agreement that would have provided the claimant with approximately £50 million. Although this was four years before his death, there was nothing to suggest his ability to access such funds had dwindled given that he remained commercially active, and by all accounts, successful.

In dismissing the defendants’ application for strike out of the claim and the setting aside of the orders granting permission to serve out of the jurisdiction, and adjourning the application for summary judgment:

• The applicant had a strong prima facie case that at his death the deceased had very considerable resources, albeit the evidence was thin as to how those resources were held. The evidence was also thin that any outright dispositions were made to the defendants during the relevant six year period, with the applicant’s case in this regard almost entirely inferential and on the basis that, if her husband was very rich and his estate appears to have mysteriously shrunk, the only logical conclusion was that the money must have gone to his blood family

• On the evidence it was likely was that dispositions may have been made to trusts settled by the deceased’s sister

• It was acceptable for the claimant to plead her case in a laconic or protean way in anticipation of particularisation following pre-action disclosure

Taking account of these findings, Mr Justice Mostyn concluded that the defendants' application to strike out the applicant’s s.10 application did not in any respect meet the standards specified in CPR 3.4(2)(a) or (b), and accordingly that limb of the termination application should be dismissed. CPR 3.4(a) provides that the court may strike out a statement of case if it appears to the court that the statement discloses no reasonable grounds for bringing or defending the claim. Likewise, pursuant to subsection (b), the court can order the strike out of a statement of case if the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. The judge equated the standard required as amounting to the need to demonstrate that the claim being advanced is legally unrecognisable.

This order extended to the overseas defendants as well as the domestic ones on the basis that the judge concluded they had been properly served.

The judge concluded that it would be fundamentally

unjust to terminate the application at such an early stage and before there had been a scrutiny of the underlying documents.

Dealing with the other submission’s made by the defendants in support of their application, Mr Justice Mostyn held that:

• Although it seemed improbable that the applicant would be awarded more as a result of her applicant under the 1975 Act, it was not possible to say that her claim was hopeless

• Although there might be difficulties in enforcing a payment order against those defendants based in New York and Switzerland, the position was not clear and argument as to this point should be left for another day

• There was a serious issue to be tried and that satisfied the threshold test for securing permission to serve out of the jurisdiction

Despite the evidence of the applicant being thin – and therefore her prospects of success unclear – the Court elected not to dismiss the application for summary judgment, but rather to adjourn it with liberty to restore so that specific disclosure could take place. This approach enabled the likely prospects of success to be adequately assessed whilst ensuring that if they were proved to be poor the defendants could, at the earliest possible opportunity, have the proceedings dispensed with.

CONCLUSIONThe courts have wide powers to set aside the provisions of a Will in order to achieve fair settlements for dependants, and they are not restricted to doing so within the time limit, or even to making gifts from the estate as it was on death. The courts have shown themselves willing to overturn the wishes of the testator, and to require other beneficiaries to repay gifts in order to achieve fair results.

BIOGRAPHIESBrie Stevens-Hoare QC is recommended in the latest editions of TheLegal500 and ChambersUK. She is a client focused property barrister experienced at dealing with property litigation, property transactions, probate, professional negligence and franchising. Brie’s property practice, focuses on real property, the more commercial aspects of property work including disputes around property developments and commercial property and contentious probate work, which generally involves property. She was appointed as a Deputy Adjudicator to HM Land Registry in 2005 and continues now as a Judge of the 1st Tier Tribunal (Property Chamber) (Land Registration Division).

Andrew Leakey is the Head of Dispute Resolution and Probate teams at Stephensons Solicitors. He has considerable litigation experience having qualified in 1997. He has run and supervised probate litigation since that time. He also regularly appears in the media to comment on consumer law issues.

LINKS AND CITATIONSInheritance (Provision for Family and Dependants) Act 1975:http://www.legislation.gov.uk/ukpga/1975/63

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IlottvMitson&others [2015] EWCA Civ 797:https://www.judiciary.gov.uk/judgments/ilott-v-mitson-and-others/

DellalvDellalandothers[2015] EWHC 907 (Fam):http://www.bailii.org/ew/cases/EWHC/Fam/2015/907.html

SwetenhamvWalkley&Bryce [2014] WTLR 845

LimvWalia [2014] EWCA Civ 1076:http://www.bailii.org/ew/cases/EWCA/Civ/2014/1076.html

BergervBerger&Ors [2013] EWCA Civ 1305

LilleymanvLilleyman [2012] EWHC 821 (Ch):http://www.bailii.org/ew/cases/EWHC/Ch/2012/821.html

KaurvDhaliwal [2014] EWHC 1991 (Ch):http://www.bailii.org/ew/cases/EWHC/Ch/2014/1991.html

ReSalmon(Deceased) [1981] Ch 167

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Discussion Points

1. How do we think ‘maintenance’ and an appropriate standard of living should be assessed?

2. Whether a marriage has been long or short is likely to affect the extent to which the property of the marriage should be shared – what length of marriage do we think should entitle a spouse to fully share the deceased spouse’s wealth?

3. When do we think that an order for a life interest will be preferable over a clean break, and vice versa?

4. What sort of factors do we think a court might take into account when deciding if a relationship meets the two year cohabitation requirement under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), and how flexible do we think the courts might be willing to be over the two year cut off point?

5. What steps would we advise a client to take who is very certain that they do not want their adult and estranged offspring to benefit from their estate?

6. In what circumstances would we advise a client that it is too late to bring a claim for financial provision under the 1975 Act?

7. Do we think that the courts are more likely to allow an application to be brought out of time when the financial provision sought is for the maintenance of a young child, and what other factors do we think will come into play?

8. What steps do we think a dependant should take if the estate appears to have been dissipated before the date the death?

Notes

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Test & FeedbackPrivate Client: Inheritance Act 1975: Dependants and Delay

Please return completed Test & Feedback to: Administration Department, Legal Network Television Limited, 14 Store Street, London WC1E 7DE or fax to: 020 7637 5911

1. Which ONE of the following CANNOT bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act)?

a. The wife or husband of the deceased.b. A former wife or former husband of the deceased

who has not remarried.c. A child of the deceased.d. Any person who was treated by the deceased as a

child of the family in relation to their marriage.e. A charity to which the deceased made regular

contributions during his/her lifetime.

2. Under s.3 of the 1975 Act, which ONE matter should the court NOT have regard to when considering whether to make an order under s.2?

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 s.2 of the 1975 Act has or is likely to have in the foreseeable future.

c. The original source of the deceased’s estate and the extent to which the person the deceased inherited from would have intended to make provision for the applicant.

d. Any obligations and responsibilities which the deceased had towards any applicant for an order under s.2 or towards any beneficiary of the estate of the deceased.

e. The size and nature of the net estate of the deceased.

f. Any physical or mental disability of any applicant for an order under s.2 or any beneficiary of the estate of the deceased.

3. Is the following statement TRUE or FALSE?

Section 10 of the 1975 Act does not affect the validity of a disposition whereas s.37 of the Matrimonial Causes Act 1973 annuls a relevant transaction.

4. In IlottvMitson (2015), which ONE of the following was identified as being something which would have strengthened the defendants’ case?

a. If Mrs Jackson had owned a pet or petsb. If Mrs Jackson had been divorced or separated at

the time of her death.c. If Mrs Jackson had made gifts to the charities during

her lifetime.d. If Mrs Jackson had made gifts to her grandchildren.e. If they could have shown that Mrs Ilott had had

no expectation of inheriting anything from Mrs Jackson’s estate.

5. Which ONE of the following is NOT a question which the judge in ReSalmon(Deceased) (1981) said should be taken into account when courts are deciding to exercise their discretion to allow an application to be made outside the six month time limit?

a. Has the applicant established grounds for an extension?

b. How promptly and in what circumstances has the applicant brought his/her application?

c. Were negotiations commenced within the six month time limit?

d. Has the estate been distributed?e. Does the applicant have a strong case for a claim

under the 1975 Act?f. Will a refusal to extend the time limit leave the

applicant without a remedy against anyone?

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Future Subjects

January 2016

Core Programme 5947Local Government: Public Contracts Regulations 2015

In 2013-14, central government spent £11.4 billion with small and

medium-sized enterprises (SMEs), a quarter of its total spend. The

opening up of public procurement to SMEs is one of the key aims

behind the Public Contracts Regulations 2015 (the PCR 2015). The

PCR 2015 came into force on 26 February 2015, implement EU

Directive 2014/24 on public procurement, and replace the Public

Contracts Regulations 2006. The PCR 2015 make changes to the

rules governing the award of contracts by public bodies, providing

greater flexibility and clarity for public sector purchasers and their

suppliers.

This programme considers:

• The scope of the PCR 2015 including two new procurement

procedures: the competition procedure with negotiation and

the innovation partnership

• Framework agreements and below threshold procurement

This programme is aimed at all practitioners working in or advising

local government on public procurement.

Classification for CPD: Intermediate; Advanced

Core Programme 5948Personal Injury: The Uninsured Drivers’ Agreement 2015

The Motor Insurers’ Bureau (MIB) acts as a fund of last resort for

claimants seeking compensation against uninsured or untraced

drivers in the UK by way of the Uninsured Drivers’ Agreement

1999. That Agreement has now been updated by the Uninsured

Drivers’ Agreement 2015, particularly in relation to procedural and

notification requirements, passenger claims, exceptions to liability,

and subrogated claims.


• Changes made in relation to passenger claims, including the

impact of the decision in DelaneyvSecretaryofStatefor

Transport (2015), and the crime exclusion

• Amendments made to the exceptions to the MIB’s liability

• Changes made in relation to subrogated claims, property

damage limitation, and to the pre-conditions to the MIB’s

obligation

This programme is aimed at all personal injury practitioners.

Classification for CPD: Intermediate; Update

Core Programme 5949Practice Management & Compliance: Marketing Your Firm

Marketing a business is a must in today’s world, particularly in the

legal services market, where competition for work is fierce. Most

businesses have a basic idea of what marketing involves, but few

really appreciate how their marketing practise can impact on the

success of their efforts. Branding should precede and underlie a

company’s marketing effort, and will support whatever sales or

marketing activities are in play. It will also help to build a loyal

customer base, which relies on the ability to connect with an

audience so that they relate to the organisation and want to have a

relationship with them.


• Branding

• Connecting with your audience

This programme is aimed at everyone working in a legal services

business.

Classification for CPD: Introductory; Intermediate; Advanced

Core Programme 5950Crime: Criminal Justice and Courts Act 2015 Part II

The Criminal Justice and Courts Act 2015 (CJCA 2015) makes

important changes to sentencing and procedure in the criminal

justice system. The aim is to increase efficiency and reduce costs.

There are also changes to the way that serious offenders are dealt

with.

In this programme we consider:

• Treatment of extended determinate sentences and automatic

life sentences

• Extension of the definition of ‘specified violent offences’ and

‘specified sexual offences’

• Minimum custodial sentences for second or further conviction

for possession of a knife or other weapon

• Other categories of offences where sentencing powers have

been increased

• The new single justice procedure

• Restrictions on the use of cautions

This programme is aimed at all criminal practitioners.

Classification for CPD: Introductory; Intermediate; Advanced

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Future Programmes

Please note that from time to time it may be necessary to change the titles, dates or subject areas of the programmes listed to reflect changes in the law.

Date Prog. No. Subject Title

15 January5947 Local Government Public Contracts Regulations 2015

5948 Personal Injury The Uninsured Drivers' Agreement 2015

22 January5949 Practice Management & Compliance Marketing Your Firm

5950 Crime Criminal Justice and Courts Act 2015 Part II

29 January5951 Family Marital Agreements

5952 Corporate/Commercial Diverted Profits Tax

Break

12 February5953 Employment Preliminary Hearings

5954 Property Electronic Communications Code

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The Solicitors Regulation Authority’s CPD requirements

The SRA requires that all solicitors admitted to the Roll and registered European lawyers undertake Continuing Professional Development (CPD). The CPD year runs from 1 November to 31 October. Briefly, the requirements are that newly qualified solicitors/registered European lawyers complete one hour for each whole month worked from the date of admission/registration to 31 October. Those admitted on 1 November will go straight into their first CPD year. 16 hours are required in each subsequent year.

Full details of SRA requirements are detailed on their website: www.sra.org.uk

Getting SRA authorisation for my firm

Complete the application form, available from our Customer Service Team (01483 216789) or The Solicitors Regulation Authority (0870 6062555), and name the members of staff who will lead the training sessions. You will have to sign a set of terms and conditions, which require that you keep records of each in-house training session. There is a small administration fee but this covers all your staff and allows them to earn their CPD hours through group study with College of Law Media for three years.

Customer Service Team The Solicitors Regulation Authority

Telephone 01483 216789 Telephone 0870 6062555

Professional Development from The University of Law

The University of Law is the UK’s leading provider of professional development for lawyers. We are focused exclusively on equipping legal practitioners at all levels with the knowledge and skills they need to further their careers and meet their continuing professional development requirements.

At the heart of the legal profession, we’ve trained more lawyers than anyone else and we’re continually evolving our innovative professional development programmes to meet the needs of the profession.

'College of Law Media' is the trading and brand name of Legal Network Television Limited, a company registered in England and Wales, Company Number 07933849, with registered office at Braboeuf Manor, St Catherines, Guildford, Surrey, GU3 1HA, United Kingdom

DX: 2400 Guildford E-mail: [email protected] Tel: 01483 216789 www.law.ac.uk

©Legal Network Television Limited 2016

5946 Study notes

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