Inheritance Act cases divide opinion amongst lawyers.
Some say they are family law, some say they are probate. Some consider them to be a standalone type of case that calls for specialism in only this area of law.
I happen to cover probate and family, so I do not have an opinion either way, but I am often asked what type of law they are.
Much of this article is simplified. There are many complicating factors in an Inheritance Act case, and this is a basic introduction for those who do NOT specialise in this area.
The relevant law is the INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975 (“IA”).
If a person dies without making proper provision in their Will for their relatives or dependants, there is a wide discretion for the court to redistribute assets to achieve a fair outcome.
To bring a claim under the IA the deceased must have been domiciled in England and Wales.
In broad terms, only the immediate family of the deceased and the deceased’s partner can bring a claim under the IA. ‘Partner’ can include surviving/ ex-spouse; surviving civil partner/ ex-civil partner; cohabitant; and a person who lived in the same household as the deceased as his/ her civil partner.
A claim may also be made by a child of the deceased; and a party who was treated as a child of the family by the deceased.
The IA has strict time limits. The personal representatives of the deceased have six months from the date representation was taken out, unless extended by the court.
High Court (Chancery or Family Division) or County Court. District Judges have jurisdiction to hear IA applications, and the county court has unlimited jurisdiction to hear IA claims.
A hugely important point when deciding whether or not a client should make an application under the IA is to consider what can be achieved. Generally speaking, the ‘usual’ orders in an IA case are periodical payments; lump sum; transfer or settlement of property; acquisition, transfer, and settlement of property; variation of a pre-nuptial or ante-nuptial agreement; variation of trusts under which the deceased’s estate is held; variation or discharge of secured periodical payments/ maintenance agreements; setting aside a disposition intended to defeat a claim under IA; treatment of the deceased’s former beneficial interest as part of his estate (and not passing by survivorship).
As can be seen, there are some parallels that run between matrimonial finance cases and IA claims. There are some significant differences too- most notably the application of the CPR rather than the FPR. Before issuing proceedings, practitioners must comply with the CPR protocol and chapter 24 of the Chancery Guide. Non-compliance may result in costs orders.
When it comes to IA cases, the law has somewhat sharper teeth than in traditional ‘family’ scenarios, and this is something that MUST be considered at the outset.
To instruct a barrister in an IA case, contact email@example.com