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INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

UK Public General Acts

Version 01/10/2014

1975 CHAPTER 63

Default Geographical Extent: E+W


  • Property available for financial provision
  • Powers of court in relation to transactions intended to defeat applications for financial provision
  • Special provisions relating to cases of divorce, separation etc.
  • Miscellaneous and supplementary provisions
  • Version 01/10/2014
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  • Version 01/02/1991

Introductory Text

Inheritance (Provision for Family and Dependants) Act 1975

1975 CHAPTER 63

An Act to make fresh provision for empowering the court to make orders for the making out of the estate of a deceased person of provision for the spouse, former spouse, child, child of the family or dependant of that person; and for matters connected therewith.

[12th November 1975]

Annotations:

Modifications etc. (not altering text)

C1 Words of enactment omitted under authority of Statute Law Revision Act 1948 (c. 62), s. 3

C2 Act amended by Forfeiture Act 1982 (c. 34, SIF 116:1, 2), s. 3(2)(a)

C3 Act extended by Inheritance Tax Act 1984 (c. 51, SIF 65), s. 146(5)


1 Application for financial provision from deceased’s estate.

(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:—

[F1 (a) the spouse or civil partner of the deceased;
(b) a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;]
[F2 (ba) any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) [F3 or (1B) ] below applies;]
(c) a child of the deceased;
(d) any person (not being a child of the deceased) [F4 who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;]
(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
[F5 (1A) This subsection applies to a person if the deceased died on or after 1st January 1996 and, during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—

(a) in the same household as the deceased, and
(b) as the husband or wife of the deceased.]
[F6 (1B) This subsection applies to a person if for the whole of the period of two years ending immediately before the date when the deceased died the person was living—

(a) in the same household as the deceased, and
(b) as the civil partner of the deceased.]
(2) In this Act “reasonable financial provision”—

(a) in the case of an application made by virtue of subsection (1) (a) above by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing) , means 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;
[F7 (aa) in the case of an application made by virtue of subsection (1) (a) above by the civil partner of the deceased (except where, at the date of death, a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force in relation to the civil partnership and the separation was continuing) , means such financial provision as it would be reasonable in all the circumstances of the case for a civil partner to receive, whether or not that provision is required for his or her maintenance;]
(b) in the case of any other application made by virtue of subsection (1) above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.
[F8 (2A) The reference in subsection (1) (d) above to a family in which the deceased stood in the role of a parent includes a family of which the deceased was the only member (apart from the applicant).]

[F9 (3) For the purposes of subsection (1) (e) above, a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money's worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature.]

Annotations:

Amendments (Textual)

F1 S. 1(1)(a)(b) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 15(2); S.I. 2005/3175, art. 2(1), Sch. 1

F2 S. 1(1)(ba) inserted (8.11.1995) by 1995 c. 41, s. 2(2)

F3 Words in s. 1(1)(ba) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 15(3); S.I. 2005/3175, art. 2(1), Sch. 1

F4 Words in s. 1(1)(d) substituted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 2(2) (with s. 12(4)); S.I. 2014/2039, art. 2

F5 S. 1(1A) inserted (8.11.1995) by 1995 c. 41, s. 2(3)

F6 S. 1(1B) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 15(5); S.I. 2005/3175, art. 2(1), Sch. 1

F7 S. 1(2)(aa) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 15(6); S.I. 2005/3175, art. 2(1), Sch. 1

F8 S. 1(2A) inserted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 2(3) (with s. 12(4)); S.I. 2014/2039, art. 2

F9 S. 1(3) substituted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 3 (with s. 12(4)); S.I. 2014/2039, art. 2


2 Powers of court to make orders.

(1) Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders:—

(a) an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order;
(b) an order for the payment to the applicant out of that estate of a lump sum of such amount as may be so specified;
(c) an order for the transfer to the applicant of such property comprised in that estate as may be so specified;
(d) an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified;
(e) an order for the acquisition out of property comprised in that estate of such property as may be so specified and for the transfer of the property so acquired to the applicant or for the settlement thereof for his benefit;
(f) an order varying any ante-nuptial or post-nuptial settlement (including such a settlement made by will) made on the parties to a marriage to which the deceased was one of the parties, the variation being for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage.
[F10 (h) an order varying for the applicant's benefit the trusts on which the deceased's estate is held (whether arising under the will, or the law relating to intestacy, or both).]
[F11 (g) an order varying any settlement made—
(i) during the subsistence of a civil partnership formed by the deceased, or
(ii) in anticipation of the formation of a civil partnership by the deceased,
on the civil partners (including such a settlement made by will) , the variation being for the benefit of the surviving civil partner, or any child of both the civil partners, or any person who was treated by the deceased as a child of the family in relation to that civil partnership.]
(2) An order under subsection (1) (a) above providing for the making out of the net estate of the deceased of periodical payments may provide for—

(a) payments of such amount as may be specified in the order,
(b) payments equal to the whole of the income of the net estate or of such portion thereof as may be so specified,
(c) payments equal to the whole of the income of such part of the net estate as the court may direct to be set aside or appropriated for the making out of the income thereof of payments under this section,
or may provide for the amount of the payments or any of them to be determined in any other way the court thinks fit.
(3) Where an order under subsection (1) (a) above provides for the making of payments of an amount specified in the order, the order may direct that such part of the net estate as may be so specified shall be set aside or appropriated for the making out of the income thereof of those payments; but no larger part of the net estate shall be so set aside or appropriated than is sufficient, at the date of the order, to produce by the income thereof the amount required for the making of those payments.

[F12 (3A) In assessing for the purposes of an order under this section the extent (if any) to which the net estate is reduced by any debts or liabilities (including any inheritance tax paid or payable out of the estate) , the court may assume that the order has already been made.]

(4) An order under this section may contain such consequential and supplemental provisions as the court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between one beneficiary of the estate of the deceased and another and may, in particular, but without prejudice to the generality of this subsection—

(a) order any person who holds any property which forms part of the net estate of the deceased to make such payment or transfer such property as may be specified in the order;
(b) vary the disposition of the deceased’s estate effected by the will or the law relating to intestacy, or by both the will and the law relating to intestacy, in such manner as the court thinks fair and reasonable having regard to the provisions of the order and all the circumstances of the case;
(c) confer on the trustees of any property which is the subject of an order under this section such powers as appear to the court to be necessary or expedient.
Annotations:

Amendments (Textual)

F10 S. 2(1)(h) inserted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 4(2) (with s. 12(4)); S.I. 2014/2039, art. 2

F11 S. 2(1)(g) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 16; S.I. 2005/3175, art. 2(1), Sch. 1

F12 S. 2(3A) inserted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 4(3) (with s. 12(4)); S.I. 2014/2039, art. 2


3 Matters to which court is to have regard in exercising powers under s. 2.

(1) Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(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 section 2 of this Act has or is likely to have in the foreseeable future;
(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 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 the said section 2 or any beneficiary of the estate of the deceased;
(g) 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.
(2) [F13 This subsection applies, without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1) (a) or (b) of this Act.]

The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—
(a) the age of the applicant and the duration of the marriage [F14 or civil partnership] ;
(b) 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.
F15 . . . In the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce [F16 ; but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made by an order under section 2.]
[F17 In the case of an application by the civil partner of the deceased, the court shall also, unless at the date of the death a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the civil partnership, instead of being terminated by death, had been terminated by a dissolution order [F16 ; but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made by an order under section 2.] ]
[F18 (2A) Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1) (ba) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—

(a) the age of the applicant and the length of the period during which the applicant lived as the husband or wife [F19 or civil partner] of the deceased and in the same household as the deceased;
(b) 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.]
(3) Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1) (c) or 1(1) (d) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the manner in which the applicant was being or in which he might expect to be educated or trained, and where the application is made by virtue of section 1(1) (d) the court shall also have regard—

[F20 (a) to whether the deceased maintained the applicant and, if so, to the length of time for which and basis on which the deceased did so, and to the extent of the contribution made by way of maintenance;
(aa) to whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant;]
(b) to whether in [F21 maintaining or assuming responsibility for maintaining the applicant] the deceased did so knowing that the applicant was not his own child;
(c) to the liability of any other person to maintain the applicant.
(4) Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1) (e) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have [F22 regard—

(a) to the length of time for which and basis on which the deceased maintained the applicant, and to the extent of the contribution made by way of maintenance;
(b) to whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant.]
(5) In considering the matters to which the court is required to have regard under this section, the court shall take into account the facts as known to the court at the date of the hearing.

(6) In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities.

Annotations:

Amendments (Textual)

F13 Words in s. 3(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 17(2); S.I. 2005/3175, art. 2(1), Sch. 1

F14 Words in s. 3(2)(a) inserted, and the words from "the court shall, in addition" to the end of s. 3(2)(b) become the second sentence of the subsection, (5.12.2005) by virtue of Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 17(3); S.I. 2005/3175, art. 2(1), Sch. 1

F15 Word in s. 3(2) repealed, and the words following it become the third sentence of the subsection, (5.12.2005) by virtue of Civil Partnership Act 2004 (c. 33), ss. 71, 261(4), 263(2), Sch. 4 para. 17(4), Sch. 30; S.I. 2005/3175, art. 2(1)(6), Sch. 1

F16 Words in s. 3(2) inserted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 5(2) (with s. 12(4)); S.I. 2014/2039, art. 2

F17 Words in s. 3(2) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 17(5); S.I. 2005/3175, art. 2(1), Sch. 1

F18 S. 3(2A) inserted (8.11.1995) by 1995 c. 41, s. 2(4)

F19 Words in s. 3(2A) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 18; S.I. 2005/3175, art. 2(1), Sch. 1

F20 S. 3(3)(a)(aa) substituted for s. 3(3)(a) (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 5(3)(a) (with s. 12(4)); S.I. 2014/2039, art. 2

F21 Words in s. 3(3)(b) substituted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 5(3)(b) (with s. 12(4)); S.I. 2014/2039, art. 2

F22 Words in s. 3(4) substituted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 5(4) (with s. 12(4)); S.I. 2014/2039, art. 2


4 Time-limit for applications.

An application for an order under section 2 of this Act 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 [F23 (but nothing prevents the making of an application before such representation is first taken out) ] .

Annotations:

Amendments (Textual)

F23 Words in s. 4 inserted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 6 (with s. 12(4)); S.I. 2014/2039, art. 2


5 Interim orders.

(1) Where on an application for an order under section 2 of this Act it appears to the court—

(a) that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made under that section; and
(b) that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant;
the court may order that, subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, there shall be paid to the applicant out of the net estate of the deceased such sum or sums and (if more than one) at such intervals as the court thinks reasonable; and the court may order that, subject to the provisions of this Act, such payments are to be made until such date as the court may specify, not being later than the date on which the court either makes an order under the said section 2 or decides not to exercise its powers under that section.
(2) Subsections (2) , (3) and (4) of section 2 of this Act shall apply in relation to an order under this section as they apply in relation to an order under that section.

(3) In determining what order, if any, should be made under this section the court shall, so far as the urgency of the case admits, have regard to the same matters as those to which the court is required to have regard under section 3 of this Act.

(4) An order made under section 2 of this Act may provide that any sum paid to the applicant by virtue of this section shall be treated to such an extent and in such manner as may be provided by that order as having been paid on account of any payment provided for by that order.

6 Variation, discharge etc. of orders for periodical payments.

(1) Subject to the provisions of this Act, where the court has made an order under section 2(1) (a) of this Act (in this section referred to as “the original order”) for the making of periodical payments to any person (in this section referred to as “the original recipient”) , the court, on an application under this section, shall have power by order to vary or discharge the original order or to suspend any provision of it temporarily and to revive the operation of any provision so suspended.

(2) Without prejudice to the generality of subsection (1) above, an order made on an application for the variation of the original order may—

(a) provide for the making out of any relevant property of such periodical payments and for such term as may be specified in the order to any person who has applied, or would but for section 4 of this Act be entitled to apply, for an order under section 2 of this Act (whether or not, in the case of any application, an order was made in favour of the applicant) ;
(b) provide for the payment out of any relevant property of a lump sum of such amount as may be so specified to the original recipient or to any such person as is mentioned in paragraph (a) above;
(c) provide for the transfer of the relevant property, or such part thereof as may be so specified, to the original recipient or to any such person as is so mentioned.
(3) Where the original order provides that any periodical payments payable thereunder to the original recipient are to cease on the occurrence of an event specified in the order [F24 (other than the formation of a subsequent marriage or civil partnership by a former spouse or former civil partner) ] or on the expiration of a period so specified, then, if, before the end of the period of six months from the date of the occurrence of that event or of the expiration of that period, an application is made for an order under this section, the court shall have power to make any order which it would have had power to make if the application had been made before that date (whether in favour of the original recipient or any such person as is mentioned in subsection (2) (a) above and whether having effect from that date or from such later date as the court may specify).

(4) Any reference in this section to the original order shall include a reference to an order made under this section and any reference in this section to the original recipient shall include a reference to any person to whom periodical payments are required to be made by virtue of an order under this section.

(5) An application under this section may be made by any of the following persons, that is to say—

(a) any person who by virtue of section 1(1) of this Act has applied, or would but for section 4 of this Act be entitled to apply, for an order under section 2 of this Act,
(b) the personal representatives of the deceased,
(c) the trustees of any relevant property, and
(d) any beneficiary of the estate of the deceased.
(6) An order under this section may only affect—

(a) property the income of which is at the date of the order applicable wholly or in part for the making of periodical payments to any person who has applied for an order under this Act, or
(b) in the case of an application under subsection (3) above in respect of payments which have ceased to be payable on the occurrence of an event or the expiration of a period, property the income of which was so applicable immediately before the occurrence of that event or the expiration of that period, as the case may be,
and any such property as is mentioned in paragraph (a) or (b) above is in subsections (2) and (5) above referred to as “relevant property”.
(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates.

(8) Where the court makes an order under this section, it may give such consequential directions as it thinks necessary or expedient having regard to the provisions of the order.

(9) No such order as is mentioned in sections 2(1) (d) , (e) or (f) , 9, 10 or 11 of this Act shall be made on an application under this section.

(10) For the avoidance of doubt it is hereby declared that, in relation to an order which provides for the making of periodical payments which are to cease on the occurrence of an event specified in the order [F24 (other than the formation of a subsequent marriage or civil partnership by a former spouse or former civil partner) ] or on the expiration of a period so specified, the power to vary an order includes power to provide for the making of periodical payments after the expiration of that period or the occurrence of that event.

Annotations:

Amendments (Textual)

F24 Words in s. 6(3)(10) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 71, 263(2), Sch. 4 para. 19; S.I. 2005/3175, art. 2(2), Sch. 1


7 Payment of lump sums by instalments.

(1) An order under section 2(1) (b) or 6(2) (b) of this Act for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.

(2) Where an order is made by virtue of subsection (1) above, the court shall have power, on an application made by the person to whom the lump sum is payable, by the personal representatives of the deceased or by the trustees of the property out of which the lump sum is payable, to vary that order by varying the number of instalments payable, the amount of any instalment and the date on which any instalment becomes payable.

Property available for financial provision


8 Property treated as part of “net estate”.

(1) Where a deceased person has in accordance with the provisions of any enactment nominated any person to receive any sum of money or other property on his death and that nomination is in force at the time of his death, that sum of money, after deducting therefrom any capital transfer tax payable in respect thereof, or that other property, to the extent of the value thereof at the date of the death of the deceased after deducting therefrom any capital transfer tax so payable, shall be treated for the purposes of this Act as part of the net estate of the deceased; but this subsection shall not render any person liable for having paid that sum or transferred that other property to the person named in the nomination in accordance with the directions given in the nomination.

(2) Where any sum of money or other property is received by any person as a donatio mortis causa made by a deceased person, that sum of money, after deducting therefrom any capital transfer tax payable thereon, or that other property, to the extent of the value thereof at the date of the death of the deceased after deducting therefrom any capital transfer tax so payable, shall be treated for the purposes of this Act as part of the net estate of the deceased; but this subsection shall not render any person liable for having paid that sum or transferred that other property in order to give effect to that donatio mortis causa.

(3) The amount of capital transfer tax to be deducted for the purposes of this section shall not exceed the amount of that tax which has been borne by the person nominated by the deceased or, as the case may be, the person who has received a sum of money or other property as a donatio mortis causa.

9 Property held on a joint tenancy.

(1) Where a deceased person was immediately before his death beneficially entitled to a joint tenancy of any property, then, if F25 ... an application is made for an order under section 2 of this Act, the court for the purpose of facilitating the making of financial provision for the applicant under this Act may order that the deceased’s severable share of that property F26 ... shall, to such extent as appears to the court to be just in all the circumstances of the case, be treated for the purposes of this Act as part of the net estate of the deceased.

[F27 (1A) Where an order is made under subsection (1) the value of the deceased's severable share of the property concerned is taken for the purposes of this Act to be the value that the share would have had at the date of the hearing of the application for an order under section 2 had the share been severed immediately before the deceased's death, unless the court orders that the share is to be valued at a different date.]

(2) In determining the extent to which any severable share is to be treated as part of the net estate of the deceased by virtue of an order under subsection (1) above, the court shall have regard to any capital transfer tax payable in respect of that severable share.

(3) Where an order is made under subsection (1) above, the provisions of this section shall not render any person liable for anything done by him before the order was made.

(4) For the avoidance of doubt it is hereby declared that for the purposes of this section there may be a joint tenancy of a chose in action.

Annotations:

Amendments (Textual)

F25 Words in s. 9(1) omitted (1.10.2014) by virtue of Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 7(2)(a) (with s. 12(4)); S.I. 2014/2039, art. 2

F26 Words in s. 9(1) omitted (1.10.2014) by virtue of Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 7(2)(b) (with s. 12(4)); S.I. 2014/2039, art. 2

F27 S. 9(1A) inserted (1.10.2014) by Inheritance and Trustees' Powers Act 2014 (c. 16), s. 12(2), Sch. 2 para. 7(3) (with s. 12(4)); S.I. 2014/2039, art. 2


Powers of court in relation to transactions intended to defeat applications for financial provision


10 Dispositions intended to defeat applications for financial provision.

(1) Where an application is made to the court for an order under section 2 of this Act, the applicant may, in the proceedings on that application, apply to the court for an order under subsection (2) below.

(2) Where on an application under subsection (1) above the court is satisfied—

(a) that, less than six years before the date of the death of the deceased, the deceased with the intention of defeating an application for financial provision under this Act made a disposition, and
(b) that full valuable consideration for that disposition was not given by the person to whom or for the benefit of whom the disposition was made (in this section referred to as “the donee”) or by any other person, and
(c) that the exercise of the powers conferred by this section would facilitate the making of financial provision for the applicant under this Act,
then, subject to the provisions of this section and of sections 12 and 13 of this Act, the court may order the donee (whether or not at the date of the order he holds any interest in the property disposed of to him or for his benefit by the deceased) to provide, for the purpose of the making of that financial provision, such sum of money or other property as may be specified in the order.
(3) Where an order is made under subsection (2) above as respects any disposition made by the deceased which consisted of the payment of money to or for the benefit of the donee, the amount of any sum of money or the value of any property ordered to be provided under that subsection shall not exceed the amount of the payment made by the deceased after deducting therefrom any capital transfer tax borne by the donee in respect of that payment.

(4) Where an order is made under subsection (2) above as respects any disposition made by the deceased which consisted of the transfer of property (other than a sum of money) to or for the benefit of the donee, the amount of any sum of money or the value of any property ordered to be provided under that subsection shall not exceed the value at the date of the death of the deceased of the property disposed of by him to or for the benefit of the donee (or if that property has been disposed of by the person to whom it was transferred by the deceased, the value at the date of that disposal thereof) after deducting therefrom any capital transfer tax borne by the donee in respect of the transfer of that property by the deceased.

(5) Where an application (in this subsection referred to as “the original application”) is made for an order under subsection (2) above in relation to any disposition, then, if on an application under this subsection by the donee or by any applicant for an order under section 2 of this Act the court is satisfied—

(a) that, less than six years before the date of the death of the deceased, the deceased with the intention of defeating an application for financial provision under this Act made a disposition other than the disposition which is the subject of the original application, and
(b) that full valuable consideration for that other disposition was not given by the person to whom or for the benefit of whom that other disposition was made or by any other person,
the court may exercise in relation to the person to whom or for the benefit of whom that other disposition was made the powers which the court would have had under subsection (2) above if the original application had been made in respect of that other disposition and the court had been satisifed as to the matters set out in paragraphs (a) , (b) and (c) of that subsection; and where any application is made under this subsection, any reference in this section (except in subsection (2) (b) ) to the donee shall include a reference to the person to whom or for the benefit of whom that other disposition was made.
(6) In determining whether and in what manner to exercise its powers under this section, the court shall have regard to the circumstances in which any disposition was made and any valuable consideration which was given therefor, the relationship, if any, of the donee to the deceased, the conduct and financial resources of the donee and all the other circumstances of the case.

(7) In this section “disposition” does not include—

(a) any provision in a will, any such nomination as is mentioned in section 8(1) of this Act or any donatio mortis causa, or
(b) any appointment of property made, otherwise than by will, in the exercise of a special power of appointment,
but, subject to these exceptions, includes any payment of money (including the payment of a premium under a policy of assurance) and any conveyance, assurance, appointment or gift of property of any description, whether made by an instrument or otherwise.
(8) The provisions of this section do not apply to any disposition made before the commencement of this Act.

11 Contracts to leave property by will.

(1) Where an application is made to a court for an order under section 2 of this Act, the applicant may, in the proceedings on that application, apply to the court for an order under this section.

(2) Where on an application under subsection (1) above the court is satisfied—

(a) that the deceased made a contract by which he agreed to leave by his will a sum of money or other property to any person or by which he agreed that a sum of money or other property would be paid or transferred to any person out of his estate, and
(b) that the deceased made that contract with the intention of defeating an application for financial provision under this Act, and
(c) that when the contract was made full valuable consideration for that contract was not given or promised by the person with whom or for the benefit of whom the contract was made (in this section referred to as “the donee”) or by any other person, and
(d) that the exercise of the powers conferred by this section would facilitate the making of financial provision for the applicant under this Act,
then, subject to the provisions of this section and of sections 12 and 13 of this Act, the court may make any one or more of the following orders, that is to say—
(i) if any money has been paid or any other property has been transferred to or for the benefit of the donee in accordance with the contract, an order directing 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 in the order;
(ii) if the money or all the money has not been paid or the property or all the property has not been transferred in accordance with the contract, an order directing the personal representatives not to make any payment or transfer any property, or not to make any further payment or transfer any further property, as the case may be, in accordance therewith or directing the personal representatives only to make such payment or transfer such property as may be specified in the order.
(3) Notwithstanding anything in subsection (2) above, the court may exercise its powers thereunder in relation to any contract made by the deceased only to the extent that the court considers that the amount of any sum of money paid or to be paid or the value of any property transferred or to be transferred in accordance with the contract exceeds the value of any valuable consideration given or to be given for that contract, and for this purpose the court shall have regard to the value of property at the date of the hearing.

(4) In determining whether and in what manner to exercise its powers under this section, the court shall have regard to the circumstances in which the contract was made, the relationship, if any, of the donee to the deceased, the conduct and financial resources of the donee and all the other circumstances of the case.

(5) Where an order has been made under subsection (2) above in relation to any contract, the rights of any person to enforce that contract or to recover damages or to obtain other relief for the breach thereof shall be subject to any adjustment made by the court under section 12(3) of this Act and shall survive to such extent only as is consistent with giving effect to the terms of that order.

(6) The provisions of this section do not apply to a contract made before the commencement of this Act.

12 Provisions supplementary to ss. 10 and 11.

(1) Where the exercise of any of the powers conferred by section 10 or 11 of this Act is conditional on the court being satisfied that a disposition or contract was made by a deceased person with the intention of defeating an application for financial provision under this Act, that condition shall be fulfilled if the court is of the opinion that, on a balance of probabilities, the intention of the deceased (though not necessarily his sole intention) in making the disposition or contract was to prevent an order for financial provision being made under this Act or to reduce the amount of the provision which might otherwise be granted by an order thereunder.

(2) Where an application is made under section 11 of this Act with respect to any contract made by the deceased and no valuable consideration was given or promised by any person for that contract then, notwithstanding anything in subsection (1) above, it shall be presumed, unless the contrary is shown, that the deceased made that contract with the intention of defeating an application for financial provision under this Act.

(3) Where the court makes an order under section 10 or 11 of this Act it may give such consequential directions as it thinks fit (including directions requiring the making of any payment or the transfer of any property) for giving effect to the order or for securing a fair adjustment of the rights of the persons affected thereby.

(4) Any power conferred on the court by the said section 10 or 11 to order the donee, in relation to any disposition or contract, to provide any sum of money or other property shall be exercisable in like manner in relation to the personal representative of the donee, and—

(a) any reference in section 10(4) to the disposal of property by the donee shall include a reference to disposal by the personal representative of the donee, and
(b) any reference in section 10(5) to an application by the donee under that subsection shall include a reference to an application by the personal representative of the donee;
but the court shall not have power under the said section 10 or 11 to make an order in respect of any property forming part of the estate of the donee which has been distributed by the personal representative; and the personal representative shall not be liable for having distributed any such property before he has notice of the making of an application under the said section 10 or 11 on the ground that he ought to have taken into account the possibility that such an application would be made.