Reasonable Financial Provision
What does reasonable financial provision mean?
Expectations of reasonable financial provision will depend upon the type of applicant.
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Spouse or civil partner
Unless at the date of death there was in force a separation order and the separation was continuing, the standard of reasonable financial provision shall be:
“Such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.”
If there is a separation order in force and separation is continuing, then the standard will be:
“Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”
When the deceased and the survivor were engaged in matrimonial proceedings that have not resulted in an order for financial provision at the date of death (i.e. financial issues were outstanding) and an application is made for reasonable provision within 12 months of that death, the Court will in effect entirely ignore the fact that there was a divorce.
Other Applicants
The standard here is such provision as would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.
Categories of possible applicants here include former spouse/civil partner who has remained un-married/not in a civil partnership, a co-habitee, a person who prior to the date of the death of the deceased was wholly or partly maintained by the deceased (and not necessarily a family member), a child of the deceased and any other child treated by the deceased as a child of the family in relation to a marriage/civil partnership.
What factors will the Court consider?
In determining an application, the Court must consider factors which may vary according to the status of the applicant. There are some common factors as follows:
- The applicant’s future financial needs and resources (including earning capacity).
- The future financial needs and resources (including earning capacity) of any other applicant.
- The future financial needs and resources of any beneficiary (including earning capacity).
- The deceased’s obligations and responsibilities towards any applicant or beneficiary.
- The size and nature of the deceased’s net estate.
- The physical and/or mental condition of the applicant or any beneficiary.
- Any other matter the Court considers relevant (including the conduct of any party).
What might the Court order?
The Court will look to ensure that any person claiming under the Act receives reasonable financial provision.
A Court may order one or more of the following out of the deceased’s estate as reasonable financial provision:
- Payment of regular sums for living expenses;
- Payment of a lump sum;
- Transfer(s) of property;
- Putting a property into a trust for the claimant’s use;
- Acquisition by the deceased’s estate of a property which is then transferred to the claimant, and / or
- Variation of a pre- or post-nuptial settlement, so long as one of the parties was the deceased.
Before the Court can exercise jurisdiction, it must be proved that the deceased died domiciled in England and Wales. The question of domicile can be a complex issue.
Who can make a claim regarding financial provision?
Generally, only immediate family or those very close to the deceased:
- The spouse or civil partner of the deceased
- A child of the deceased. Child of the deceased has a wide meaning and includes adults, illegitimate or adopted children and those born after the parent’s death
- A person treated as a child of the deceased
- A former spouse or civil partner who has not since remarried or formed another civil partnership
- Someone who lived with the deceased for at least 2 years before their death
- Someone who has been financially supported by the deceased up until their death
It is important that prompt action is taken if you feel that you have any grounds to make a claim against an estate. A time limit of six months from the Grant of Probate applies in relation to such claims.
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Martyn is a consultant and specialises in contested Wills and personal injury.
Trudi is a Senior Associate at Mullis & Peake, with extensive experience in the Wills and Probate field.
