Claims, Trusts and Post-Administration — SQE1 FLK2 Wills and Administration of Estates

A man dies leaving an estate of £700,000. His will gives £50,000 to the wife he has been married to for twenty-five years, and everything else to his two adult children from an earlier marriage. She is sixty, has a small pension of her own and no other capital. The home they shared is part of the estate, and it will have to be sold to pay the children their shares.

She wants to know whether a court can do anything about it. It can. And the reason she is in a stronger position than almost anyone else who might complain about a will is a single distinction that runs through this whole topic.

This is Claims, Trusts and Post-Administration, the last topic in Wills and Administration of Estates. Keep that widow in mind. We come back to her.

Here is the route. The 1975 Act first: who may claim, the two standards, and the factors the court weighs. Then the deadline, which trips more claims than anything else. Then the orders, and how far the estate can be stretched to pay them. Then variations and disclaimers after death. Then the trusts a will leaves behind, and what the beneficiaries of them can insist on.

Start with what the Act is for. Testamentary freedom in this country is real, but it is not absolute. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain people may apply to the court on the ground that the deceased's will, or the intestacy rules, did not make reasonable financial provision for them.

Two features to fix at the start. It works on testate and intestate estates alike, and a successful claim varies the will or the intestacy provisions rather than replacing them. And the claim is brought against the estate, not against individual beneficiaries, although the effect is to cut down what those beneficiaries take. Beneficiaries who have already been paid may have to contribute back.

Who can apply? Six categories, and they are worth learning as a list. A spouse or civil partner, including one who was separated but not divorced. A former spouse or civil partner who has not remarried or formed a new civil partnership.

A cohabitant who lived as the deceased's spouse or civil partner for at least two years before the death. A child, including an adult child, and whether born inside or outside marriage. A person treated as a child of the family, which catches stepchildren and some foster children, and needs a genuine family relationship rather than merely money changing hands.

And finally anyone who was being maintained, wholly or partly, by the deceased immediately before the death. That is the widest door. It can take in a cohabitant who falls short of the two years, another relative, or somebody unrelated altogether. But the maintenance must have been regular, and more than occasional generosity.

Now the distinction that decides more of these claims than any other. There are two standards of reasonable financial provision, and which one applies turns on who is asking.

For a surviving spouse or civil partner, it means such provision as it would be reasonable in all the circumstances for them to receive, whether or not it is required for their maintenance. For every other applicant, it is confined to what would be reasonable for that applicant's maintenance.

Which is why our widow is in a strong position. She is not asking to have her weekly outgoings covered. On the spouse standard the court can make capital provision to secure her a home, because her claim is not limited to maintenance at all. An adult child in her place would be arguing about something much narrower.

And note that the test is objective throughout. The question is whether the provision made was reasonable, judged by the court, not whether the applicant feels hard done by. Disappointment is not a ground of claim.

So what does the court weigh? The applicant's financial resources and needs, now and in the foreseeable future. The resources and needs of any other applicant. The resources and needs of any beneficiary of the estate, so a wealthy beneficiary and a struggling one are not in the same position.

Then the obligations and responsibilities the deceased had towards the applicant, which include moral obligations and not only legal ones. The size and nature of the estate, since the court cannot give away more than there is. Any physical or mental disability. And any other relevant matter, including the conduct of the applicant.

For a surviving spouse there is more. The court also has regard to the applicant's age, the duration of the marriage, and the contribution made to the welfare of the family, including looking after the home. And it asks what the applicant might reasonably have expected to receive had the marriage ended in divorce rather than death.

The deceased's own reasons for cutting somebody out are relevant, but they are not conclusive. A testator cannot immunise a will by writing a letter explaining it.

Which brings us to the applicant the exam likes most: the adult child. An adult child may certainly apply. The difficulty is not standing, it is succeeding, because the maintenance standard bites hard.

In Ilott v The Blue Cross the Supreme Court confirmed the shape of it. An independent adult in comfortable circumstances must show a real need for maintenance, not simply a wish for more. The testator's clearly expressed wishes weigh in the balance, and so do the interests of the beneficiaries actually chosen, a charity included.

So take the estranged son in his fifties, in steady well-paid work and owning his home outright. He says that as her child he is entitled to a share whatever his mother wanted. He is asking the wrong question. There is no rule that a child cannot be disinherited.

Now the deadline, and this is where good claims die. An application must be made within six months from the date on which representation was first taken out. From the grant. Not from the death.

Under s.4 the court may permit an application out of time. It weighs how long the delay was and why, whether negotiations began within the time limit, whether the estate has already been distributed, and whether there is an arguable claim at all. But the discretion belongs to the court, not to the claimant, and permission has been refused for long unexplained delays. Never plan on it.

There is a practical corollary for anyone acting for the estate. Once a claim is notified, distribution should stop. Personal representatives who pay out after notice of a potential claim may find themselves personally liable, and the assets have to be preserved until it is resolved.

If the claim succeeds, what can the court order? A lump sum, which is much the commonest and finalises matters. Periodical payments, which suit a spouse or a long-term need. A transfer of specific property, such as the family home. A settlement of property, or a variation of the trusts in the will.

But an order is only worth what the estate can pay, which is why the Act widens what counts as the estate. Take a man whose only real asset was a house held as beneficial joint tenant with his brother. On death it passed to the brother by survivorship, outside the estate, leaving a few thousand pounds and a dependent wife with no provision at all.

Under s.9, where the application is made within six months of the grant, the court may order that the deceased's severable share of joint property be treated as part of the net estate. To the extent it thinks just. Not the whole house. His half of it. The wife's claim is not confined to the few thousand pounds.

And the Act reaches backwards as well. Under s.10 and the sections following it, look at dispositions made less than six years before death. If one was made with the intention of defeating an application, and for less than full valuable consideration, the court may order the recipient to provide money or property to be treated as part of the net estate. Giving it away in advance does not work.

Turn now to what families can do for themselves, without a court. A deed of variation, made within two years of the death and with the agreement of every beneficiary affected, can rewrite who takes what. Do it properly and it is read back for inheritance tax under s.142, as though the deceased had made the new provisions himself.

Alongside it sits the disclaimer, and the difference between the two is a favourite. A disclaimer is a refusal, nothing more. The beneficiary who disclaims cannot say where the gift goes. It passes as if she had died before the testator, under any substitution in the will, or into residue, or on intestacy.

So a daughter who inherits £100,000 she does not need, and wants it to go to her own children, cannot get there by disclaiming. Disclaim and it goes wherever the will or the intestacy rules send it, which may be nowhere near them. To choose the destination she needs a variation. Refusing and redirecting are not the same act.

Last part of the topic, and it starts the moment administration ends. Wills create trusts. A gift to a minor cannot be paid over, so it is held until eighteen or a later specified age. A life interest gives one beneficiary the income for life with the capital passing to the remaindermen afterwards. There are discretionary trusts, and trusts for disabled beneficiaries which preserve means-tested benefits.

Which means the personal representatives often become trustees, and their duties run on for years after probate. Under the Trustee Act 2000 they owe a statutory duty of care. They have wide investment powers, to be exercised as a prudent investor would, considering suitability and diversification. And they may delegate functions such as investment management to agents. Delegating does not discharge them. They must still supervise.

And they must hold a balance that pulls two ways. The life tenant wants income now. The remaindermen want capital growth for later. An investment policy that serves one perfectly will usually be unfair to the other, and where the conflict cannot be resolved the trustees can ask the court for directions.

What can the beneficiaries insist on? Information about the trust, its assets and their entitlement, on reasonable request, with a fixed beneficiary in a stronger position than an object of a discretion. Trust accounts, at reasonable intervals. And they may challenge decisions taken outside the trustees' powers or made improperly.

They can also bring the whole thing to an end. Under the rule in Saunders v Vautier, a beneficiary of full age and sound mind who is absolutely entitled to the trust property can require the trustees to hand it over. It does not matter how firmly the will directed them to hold on until a later age. Where several beneficiaries are between them absolutely entitled, they can do it together.

That works only if everyone who is interested can consent. Where there are minor, unborn or unascertained beneficiaries who cannot, the Variation of Trusts Act 1958 lets the court supply the missing consents. It must be satisfied that the arrangement is for the benefit of those it consents for.

Finally, getting rid of people. Trustees can be removed by the court for misconduct, incapacity or unfitness. And one who has been outside the United Kingdom for more than twelve months can be replaced without going to court at all, under s.36 of the Trustee Act 1925.

A personal representative can be removed and replaced under s.50 of the Administration of Justice Act 1985. But the grounds must be substantial. Misconduct, incapacity, a conflict of interest, or a real failure to administer the estate. Mere delay, or a beneficiary who disagrees with the decisions being taken, will not be enough.

And where assets have been misapplied, the beneficiaries can trace them into the hands of whoever now has them, through mixtures and substitutions. They can claim them back, or hold the recipient as a constructive trustee. Tracing stops at a bona fide purchaser for value without notice, which is the point at which the trail goes cold.

A word on how SQE1 tests this. You are not asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. This topic runs mostly on a single statute, so the Act is what to learn, and two names are worth carrying with it.

Ilott v The Blue Cross, because it tells you how hard an independent adult child has to work, and that a testator's wishes and the chosen beneficiaries both count. And Saunders v Vautier, because beneficiaries who are between them absolutely entitled do not have to wait for a date the testator picked.

Four traps. One: the clock runs from the grant of representation, not from the death, and the period is six months rather than twelve. A claimant who has just discovered what the will says gets no extra time for that. Her ignorance is something to plead when asking the court's permission, not a reason the deadline moved.

Two: match the standard to the applicant. Only a spouse or civil partner escapes the maintenance limit. Give an adult child the spouse standard and you will award far too much; hold a widow to maintenance and you will award far too little.

Three: a small estate is not the end of the enquiry. Survivorship property can be pulled in as a severable share, and lifetime gifts made to defeat a claim can be clawed back from the recipient. Look past the figure on the grant.

Four: disclaiming is not redirecting. A beneficiary who disclaims loses all say in where the gift lands. If the client wants it to reach particular people, the answer is a deed of variation, and it has to be made within two years of the death.

Quick check. A woman died on 3 January 2026. Probate of her will was granted to her executors on 4 May 2026. The will leaves the whole estate to a charity and nothing to her daughter, who had been financially supported by her mother for many years. The daughter learned what the will contained only last week, and comes for advice about applying for provision out of the estate.

By what date must she issue her claim if she is to be in time? Three candidate answers. One: 3 July 2026, because the six months run from the date on which the deceased died. Two: 3 January 2027, because she has twelve months from the date of death.

Three: 4 November 2026, because the six months run from the date on which the grant was taken out. Pause here if you want a moment.

The answer is three. An application may not be made, except with the permission of the court, after the end of six months from the date on which representation was first taken out. Time runs from the grant, not the death. The grant issued on 4 May 2026, so she must issue by 4 November 2026, and she should do it at once.

Why the others fail. One and two both start the clock at the death, and the estate may not be represented for months afterwards. Two also stretches six months into twelve. And note what does not help her: learning of the will's contents late does not stop time running. It is something to rely on when asking the court to allow a late claim.

Five things to take away. One: the 1975 Act lets six categories of applicant say the will or the intestacy did not make reasonable financial provision for them. A successful claim varies what the will or the rules provided. Two: a spouse or civil partner is not confined to maintenance. Everybody else is.

Three: six months from the grant, with a discretion to extend that belongs to the court and not to you. Four: the net estate can be widened, to a severable share of survivorship property and to gifts made within six years to defeat a claim.

Five: after death a variation redirects and a disclaimer merely refuses, and the trusts a will leaves behind carry duties that run for years. And our widow with £50,000 out of £700,000? Measured by the kinder standard, and asking for a home rather than an allowance. That is the end of Wills and Administration of Estates. Next time, a new subject: Solicitors Accounts.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.