Rights on death — overview

Cohabitants have rights on death to reasonable financial provision against a deceased’s estate, but must prove their entitlement.

Rights on death of cohabitant

A cohabitant may claim against a deceased’s estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975), s 1A on the grounds that the disposition of the deceased’s estate effected by their will or the law relating to intestacy does not make reasonable financial provision for them. I(PFD)A 1975, s 1(1) defines reasonable financial provision for the class of applicants that includes cohabitants as limited to that which would be reasonable for the applicant to receive for their maintenance. The level of maintenance is determined in the context of the lifestyle the applicant had with the deceased rather than the lifestyle prior to meeting them.

I(PFD)A 1975, s 1 provides a checklist to which a court must have regard for all applicants, which includes:

• the applicant's financial resources and needs

• the size and nature of the net estate of the deceased

Under I(PFD)A 1975, s 2 the court may make a range of orders for payment out of the deceased’s net estate, including:

• periodical payments order

• lump sum order

• transfer of property order

In practice, the courts apply similar considerations to those it considers in relation to a financial claim upon divorce or civil partnership dissolution and many claims are settled out of court by payment of an agreed lump sum.

Eligibility to apply

If the cohabitants were, during the whole of the period of two years ending immediately before the date when the deceased died, living in the household, and living as husband and wife, they may make the claim as of right. A couple do not necessarily require a sexual relationship to be living as husband and wife, as this is determined by reference to the range of marital relationships.

When determining the award for this class of applicant, the court must have regard to the age of the applicant, the length of time the applicant lived with the deceased as husband or wife and the contribution made to the welfare of the deceased’s family, including looking after the home or caring for the family.

If they were not living as husband and wife for two years in the household, the applicant must show that immediately before the death of the deceased they were being maintained, either wholly or partly, by the deceased. The deceased must have made a substantial contribution in money or money’s worth towards the reasonable needs of the applicant, otherwise than for valuable consideration. The contribution of the deceased is balanced against the contribution of the applicant, and an application for reasonable financial provision should only be struck out if there is no doubt that the applicant made the greater contribution or that the contributions were equal.

When determining the award for this class of applicant, the court must have regard to the extent to, and basis upon, which the deceased assumed responsibility for the applicant’s maintenance and the length of time for which they discharged the responsibility.

Procedure

An application for financial provision may be made in the High Court or county court. Claims must be issued under the Civil Procedure Rules 1998 (CPR 1998), Pt 8.

The claimant must file with the claim form a statement of case and any written evidence upon which they wish to rely. The claim form must state that the application is made under I(PFDA) 1975 and normally specifies a request for reasonable financial provision. To contest the claim, the defendant must file an acknowledgment of service and written evidence upon which they wish to rely . There are strict time limits within which a claim must be brought. The application must not be made later than six months after the date when representation to the deceased's estate is first taken out, except with permission of the court, and the application must not be made at all before a grant of representation has been obtained.

CPR 1998 apply generally in respect of case management and evidence. I(PFDA) 1975 claims are allocated to the multi-track. In accordance with CPR 1998, Pt 44, costs are at the discretion of the court. The overriding objective of CPR 1998 has prevented a striking out of a claim for procedural errors where it was clear from the documentation what was being sought.