Financial Assistance from an estate

Terms used in this document

Personal representative in this document means the executor of the estate of the person who has died if s/he left a will, or the administrator of her/his estate if s/he died without making a will. Generally anyone can be appointed an executor, for example, a friend, unmarried or married partner, civil partner or relative. There are, however, strict rules about who can be an administrator of an estate where there is no will. These limit the role of administrator to the married partner, civil partner or certain close relatives of the person who has died. This means that the administrator is often also the nearest surviving relative of the person who has died. The partner of the person who has died cannot be the administrator of her/his estate unless the couple are married or civil partners.

Applying for financial help

Someone may wish to apply for financial help from the estate of the person who has died. S/he may wish to do this because s/he is not entitled to receive anything from the estate either under a will or where the person died without making a will.

There are two procedures which can be used:-

• claiming under the Inheritance (Provision for family and dependants) Act 1975 (in N. Ireland the Inheritance (Provision for family and dependants) Order (NI) 1979). This can be used whether or not the person died having made a will
• by asking for an ex gratia payment from the Crown where the person died without a will and there are no surviving relatives entitled under the rules of intestacy. In these cases, the estate of the person who died passes to the Crown which has a discretionary power to make payments.

If someone wants to apply for financial help from a person's estate s/he will need to seek the advice of a solicitor. They may be able to get help with legal costs under the legal help scheme (green form scheme in N. Ireland).

Claiming under the statutory inheritance rules

The Inheritance (Provision for family and dependants) Act 1975 and the Inheritance (Provision for family and dependants) order (NI) 1979, entitles certain people to apply to court for reasonable financial provision. They can do this where, because of the terms of the will, or because a will has not been made, they have not been provided for in the estate of a person who has died.

In order for the inheritance rules to apply, the person who died must have had her/his permanent home in England, Wales or N. Ireland.

Who can apply

The following clients can apply for financial provision from the estate of the person who has died:-

• the married partner of the person who has died
• the civil partner of the person who has died
• the cohabiting partner of the person who has died provided that they had lived together as if they were married or as if they were civil partners for at least the two years ending immediately before the date of death.
• the divorced or separated partner of the person who has died (provided s/he has not re-married or formed a civil partnership)
• the former civil partner of the person who has died (provided s/he has not registered another civil partnership or married)
• a child of the person who has died. This includes adopted children. A child can apply regardless of her/his age, marital status or financial dependence on the person who has died. However, applications by adult self-supporting children may not succeed
• anyone who was treated by the person who died, while married or in a civil partnership, as a child of the family. This would include a child of a partner's previous relationship
• any person who was being maintained (wholly or partly) by the person who died immediately before her/his death, for example, a cohabiting partner (of the opposite sex or same sex) who had lived with the person who has died for less than two years, a carer or relative not otherwise entitled under the rules of intestacy.

What is reasonable financial provision

Before a court will make an order for financial provision, it has first to consider and decide that the person who died failed to make reasonable financial provision for the client. What is reasonable varies according to the applicants relationship with the person who died:-

• for a married partner or civil partner, reasonable financial provision is that which would, in all the circumstances, be reasonable. The applicant does not have to show that provision is needed for her/his maintenance. The court will also look at a number of factors, including the age, the length of the marriage or partnership and the person's contribution to the welfare of the family of the person who has died, including looking after the home or caring for the family
• for a partner where the relationship has ended by divorce, dissolution or separation reasonable financial provision is that required for the surviving partner's maintenance. This can be ignored by the court if the person died within twelve months of the divorce, dissolution or separation and there had been no application or order made in that time for financial provision or property adjustment. The court will also look at the age of the applicant, the length of the marriage or partnership and the contribution made to the welfare of the family of the person who died. As part of divorce, dissolution or separation proceedings a court can bar future applications for reasonable financial provision. The court can also amend an order for maintenance when the applicant applies for reasonable financial provision if there is no bar to future claims and an agreement has not been made that maintenance should end on death
• for a child, reasonable financial provision is that required for the child's maintenance
• for a person treated as a child of the family, reasonable financial provision is that required for the child's maintenance. The court will consider whether the person who has died had assumed responsibility for the child's maintenance, the basis for doing so and the length of time s/he had done so. The court will also consider whether the person who died knew that the child was not her/his own and whether any other person is liable to maintain the child
• for any person being maintained by the person who died immediately before her/his death, reasonable financial provision is that required for her/his maintenance. The court will look at the basis of the responsibility for maintenance, how much s/he was maintained by the person who died and the length of time that the applicant was maintained. See also the next paragraph.

Where the court is looking at a maintenance requirement it will consider the circumstances in the same way as when considering maintenance on divorce, dissolution or separation.

How the court will decide

The inheritance rules set out factors which the court must consider when deciding whether reasonable financial provision has been made, and if not, when deciding what provision to order (see the paragraph below). If the claim is from a cohabiting partner, there are additional factors which the court must take into account.

The factors to be considered in all cases are:-

• the present and future financial needs and resources of the applicant
• the present and future financial needs and resources of other applicants
• the present and future financial needs and resources of any beneficiary of the estate, both now and in the future
• any obligations or responsibilities of the person who has died towards any applicant for an order or beneficiary of her/his estate
• the size and nature of the estate of the person who has died
• any physical or mental disability of any applicant for an order or beneficiary of the estate
• any other matter, which the court considers relevant, such as the conduct of the applicant, a promise or agreement to dispose of the estate in a certain way, whether a will has failed to achieve what the person who died expected and any expressed intentions to provide for the applicant.

The additional factors which must be taken into account when the claim is from a cohabiting partner are:-

• the age of the person applying and the length of time s/he had lived with the person who died; and
• the contribution made by the person applying to the welfare of the family of the person who has died. This could include contributions made by looking after the home or caring for the family.

Resources available include such things as earnings capacity and available social security benefits.

Orders that can be made

Where a court considers that reasonable financial provision has not been made for the applicant, it may order one or more of the following:-

• periodical payments from the estate
• a lump sum payment from the estate
• a transfer of property from the estate
• a settlement of property from the estate for the applicant's benefit
• use of property from the estate to acquire other specified property which will be transferred to, or settled for the benefit of, the applicant
• the variation of any marriage settlement or settlement made when a civil partnership is formally ended (including settlement made by will) for the benefit of the surviving partner's child or person treated as a child of the family.

Orders for periodical payments are usually made for a set length of time, normally running from the date of death, date of judgment or from the end of twelve months after the death. Orders do not automatically end on remarriage or registration of a new civil partnership, although courts can decide to make this part of the order. Similarly orders for the benefit of children do not automatically end on marriage, forming a civil partnership or reaching 18. Again the court can decide to do this. Orders made for the benefit of a divorced or separated married partner, or former civil partner, do end automatically on remarriage or registration of a new civil partnership.

Orders for periodical payments can be made payable to the mother or guardian of a child for the child's benefit.

This is a complex area of law and the advice of a solicitor should be sought if you are thinking of applying for financial assistance from an estate.

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