Family Provision

The Inheritance (Provision for Family and Dependants) (NI) Order 1979 makes provision for applications by spouses, civil partners, family members, and dependents for provisions from the estate of a deceased.

Reasonable financial provision, in the case of an application by the husband or wife of a deceased, means financial provision that 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 their maintenance. The provisions are similar in the case of a civil partner.

In the case of other applications, financial provision should be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.

References to a spouse, wife, or husband include persons who, in good faith, entered into a void marriage, unless the marriage of the deceased was dissolved or annulled during the lifetime of the deceased and the dissolution or annulment is recognized by the law of Northern Ireland, or the person has formed a subsequent marriage or civil partnership during the lifetime of the deceased.

Where a person dies domiciled in Northern Ireland and is survived by a spouse or civil partner; a former spouse or former civil partner (except for those who have subsequently remarried or entered into another civil partnership); a child; a person treated by the deceased as a child of the family in relation to that marriage; or a person who was being maintained, wholly or partly, by the deceased immediately before their death, that person may apply to the court for an order if they believe that the disposition of the deceased’s estate through the will or intestacy, or combination thereof, does not provide reasonable financial provision for them.

These provisions also apply to persons who lived in the same household as the deceased during the whole of the two years before the date of death and were considered either the husband or wife of the deceased or the civil partner of the deceased.

When an application is made, the court may, if it finds that the disposition effected by the will, intestacy, or combination does not make reasonable financial provision for the applicant, make one or more of the following orders: an order for periodical payments for a specified term from the net estate of the deceased; a lump-sum payment; the transfer of property; the settlement of property for the benefit of the applicant; acquisition of property from the estate for the applicant’s benefit; and an order varying any ante-nuptial or post-nuptial settlement involving the parties to a marriage, of which the deceased was one.

The order can specify payments equal to the whole income of the net estate or a part thereof, or payments equal to the whole income of a specified part of the net estate.

Orders can also include consequential and supplemental provisions as deemed necessary by the court, including requirements for those holding property, property transfers, variations in the disposition of the estate through will or intestacy, or granting trustees powers as deemed necessary or expedient.

If the deceased is survived by a spouse and children who are the deceased’s and the surviving spouse’s issue, or children adopted by them, and the surviving spouse is entitled to reasonable financial provision for both themselves and the children through intestacy or a combination thereof, the court shall not make an application in favor of minor children.

The court must consider several factors in determining whether reasonable financial provision has been made, including the financial resources and needs of the applicant and other potential applicants, the financial resources and needs of any beneficiaries, the deceased’s obligations and responsibilities towards the applicant or beneficiaries, the size and nature of the estate, and the impact of dividing any business. Additionally, the court should consider the mental or physical disability of the applicant and any other relevant factors, including the conduct of the applicant and others involved.

The court should also take into account the age of the applicant, the duration of the marriage or civil partnership, and the contributions made by the applicant to the welfare of the deceased’s family, including contributions to home care and family care.

In the case of an application by the husband or wife of the deceased, the court should consider what provision the applicant might reasonably have expected to receive if the marriage had been terminated by divorce on the day the deceased died, unless a decree of judicial separation was in force.

If the application is based on the parties living together, the court should consider the age of the applicant, the duration of their cohabitation as husband or wife or civil partners in the same household, and the contributions made by the applicant to the family’s welfare, including home care and family care.

For an application by a child or a person treated as a child, the court should consider how the applicant was being educated or trained and whether the deceased assumed responsibility for maintenance. In the case of a person treated as a child, the court should also consider whether the deceased knew the child was not their biological child and any other person’s liability to maintain the applicant.

An application cannot be made without the court’s permission after six months from the date the representation to the estate is undertaken.

Provisions for interim orders exist for applicants in immediate need of financial assistance, even when it’s not yet possible to determine what, if any, provisions should be made. Property from the estate may be used to meet the applicant’s needs.

The court may impose further orders for payment from the net estate of the deceased at reasonable intervals, taking into account the urgency of the case and the factors mentioned above.

If the court has made an order for periodical payments, it may have the power to vary or discharge the original order, temporarily suspend its provisions, or revive a suspended order upon application.

Applications for variation or discharge of a periodical payments order may be made by persons who have applied or would have been entitled to apply within the time limit. This includes personal representatives and beneficiaries of the estate, as well as trustees of any property in the estate.

A variation order may only affect assets, the income of which is applicable wholly or in part for making periodical payments, or in the case of payments that have ceased due to an event or the expiration of a period, property the income of which was applicable immediately before the event.

In cases of payments scheduled to cease upon an event or the expiration of a period, the power to vary the order includes the power to provide for periodical payments after the occurrence of the event or the expiration of the period.

An order, either final or interim, for the payment of a lump sum may specify installment payments as detailed in the order.

In such cases, the court may, upon application by the person entitled to the payment, the personal representative of the deceased, or the trustees of the property from which the payment is due, vary the order by altering the number, amount, or due date of the installments.