inheritance act

Davina Haydon looks at spouse and civil partner claims under the 1975 Inheritance Act, beginning with a quote from one of the leading cases.

“A deceased spouse who leaves a widow is entitled to bequeath his estate to whomsoever he pleases: his only statutory obligation is to make reasonable financial provision for his widow.” – Wall LJ in Cunliffe v Fielden [2006]

Fourteen years on, Cunliffe v Fielden is still a leading Inheritance (Provision for Family and Dependants) Act 1975 case. This is because this Act (also known as “the 1975 Act” and “the Inheritance Act”) continues to generate many claims.

1975 Inheritance Act

Some people say the Inheritance Act makes a mockery of the principle in English law of testamentary freedom: that a testator (the person who makes a Will) can leave their estate to whomsoever they please.

However, it is sometimes necessary to use the Inheritance Act for disappointed beneficiaries who consider that a deceased has made no reasonable financial provision for them in a Will (or, where no Will has been made, the intestacy rules make no reasonable financial provision for them).

I have acted for so-called “farming widows” in these types of claim, as well as acting for many other categories of deserving claimants. In my experience, they are often sad but necessary claims to make and they are not embarked upon lightly as the Inheritance Act limits: who can claim; what evidence to gather in and consider; and what factors are used to assess whether reasonable financial provision should be made.

Who can claim?

There is a limited group of eligible claimants in section 1(1) of the Inheritance Act which I will address in a future article.

However, top of the list in section 1(1)(a) is “the spouse or civil partner of the deceased”, which I focus on in this article.

The reference above in Cunliffe to a “widow” and “spouse” pre-dated the Marriage (Same Sex Couples) Act 2013 so ‘spouse’ now includes a marriage between same sex couples.

Also included in the Inheritance Act definition are a judicially separated spouse or civil partner, a party to a voidable marriage or civil partnership (which was not annulled before the deceased died) and those who have entered into a polygamous marriage. Spouse also includes a person who in good faith entered into a void marriage, unless that marriage was annulled or dissolved during the deceased’s lifetime, or that person had remarried.

Therefore, where I refer to spouses and marriage in this article this includes same sex spouses, civil partners and civil partnerships.

What is “reasonable financial provision”?

The definition of spouse or civil partner is important because the meaning of “reasonable financial provision” in an Inheritance Act claim is more generous to claimants in the spouse and civil partner category than any other category.

At Section 2(a), it is defined as “…such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife (which includes a surviving spouse of a same sex marriage) or civil partner to receive, whether or not that provision is required for his maintenance.”

The “Section 3 factors”

The matters which the courts must take into account when deciding whether or not to make an order under Section 2 are known as the “Section 3 factors” which I will cover in more detail in a later and separate article. In summary, they require the courts to consider:

  • the present and future financial needs and resources of the claimant, any other potential claimants and the existing beneficiaries of the estate;
  • the obligations which the deceased had towards the claimant, any other claimant and beneficiaries of the estate;
  • the size and nature of the net estate;
  • any physical or mental disabilities of claimants and existing beneficiaries; and
  • any other matter which the court might consider relevant.

Additionally, in the case of a surviving spouse or civil partner the courts must consider:

  • the age of the claimant and duration of the marriage or civil partnership;
  • the contribution made by the claimant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family; and
  • the provision which the claimant might reasonably be expected to receive if, on the day the deceased died, the marriage, instead of being terminated by death had been terminated by a decree of divorce or dissolution of the partnership.

However, in considering these additional factors, the judges often emphasise that the circumstances surrounding termination of a marriage by death compared with a breakdown of a relationship are “undeniably different” with Briggs J (as he then was) saying in Lilleyman v Lilleyman [2013]:

“This is a 1975 Act case, not a divorce case, in which the principles are only a cross-check…The divorce cross-check is just that, a cross-check, no more and no less. It is, like all the other matters to be taken into account under s3, of infinitely variable weight on the facts of each particular case.”

Types of Inheritance Act claims

The sort of facts and issues that arise are indeed infinite and variable but current themes (especially in second or third marriage 1975 Act cases) can be around the so-called “short marriage-big money” claims and whether a short marriage (with perhaps a longer period of cohabitation beforehand) is no less a partnership of equals than a long marriage.

Issues can also arise over what was pre-marriage family property (or “non-matrimonial property”). Also, whether granting a spouse a right to occupy the deceased’s property for life, rather than granting a property outright, is what a surviving spouse is entitled to expect by way of reasonable financial provision.

Whether it is a long or short marriage or civil partnership, all these cases involve full disclosure by the claimant spouse or civil partner of his/her financial needs and circumstances in order to show any shortfall and unreasonable provision which the court is invited to correct. We are accustomed to working with clients in gathering this evidence and advising on whether or not pursue these claims.

If you consider you have not received reasonable financial provision in a spouse or civil partner’s estate, do get in touch with our Inheritance and Trust Disputes team.