Commentary on Sections Schedule 4 – Wills, the administration of estates and family provision
533.Schedule 4 amends legislation relating to wills, the administration of estates and family provision to ensure that civil partners are given the same rights as married people.
534.Paragraph 2 inserts new sections 18B and 18C in the Wills Act 1837. The effect of these amendments is that, with the same limited exceptions as apply to marriage, a will is revoked when the testator forms a civil partnership with someone. They will also - once the civil partnership has been dissolved, annulled or made the subject of a presumption of death order - prevent former civil partners, where named as executors in the will, from becoming executors, and former civil partners named as beneficiaries in the will, from inheriting, unless the will provides otherwise.
535.Paragraph 3 applies the provisions of the Wills Act 1837 and the Wills Act 1968 so as to prevent the passing of gifts to a civil partner who attests the signature of the testator except where the will would have been valid without that signature.
536.Paragraph 4 amends section 16 of the Wills Act 1837 so that where the civil partner of a creditor of the testator witnesses the will, he or she may be admitted as a witness in proceedings about the will.
537.Paragraph 5 provides that the deceased’s civil partner has priority over the issue of the testator should the testator bequeath the same gift separately to both of them.
538.Paragraph 6 amends section 6 of the Public Trustee Act 1906 to place surviving civil partners in the same position as surviving spouses in having priority over the Public Trustee in being granted probate or letters of administration.
539.Paragraph 7 amends section 46 of the Administration of Estates Act 1925 to allow surviving civil partners to inherit the estate of their deceased civil partner under the intestacy rules in the same way as surviving spouses.
540.Paragraph 8 amends section 47 of the 1925 Act so that an intestate’s residuary estate is held on trust for those of his children (or their issue if they predecease the intestate) who reach the age of 18, or marry, or form a civil partnership, under that age.
541.Paragraph 9 amends section 47A of the 1925 Act so as to provide that surviving civil partners shall have the same right as surviving spouses to redeem their life interest in their share of the intestate’s residuary estate.
542.Paragraph 10 amends section 48 of the 1925 Act so as to provide that a personal representative shall have the same power to raise sums in respect of a surviving civil partner’s interest as they do in respect of a surviving spouse’s interest.
543.Paragraph 11 amends section 51 of the 1925 Act so that where a minor who is equitably entitled to property under a trust dies he is deemed to have had a life interest in the property if he has married nor formed a civil partnership.
544.Paragraph 12 amends section 55(1)(xviii) of the 1925 Act by adding a reference to the formation of a civil partnership to the definition of “valuable consideration”.
545.Paragraph 13 amends section 5 of and Schedule 2 to the Intestates’ Estate Act 1952 by allowing the surviving civil partner to acquire the home he or she has shared with the deceased civil partner.
546.Paragraph 14 amends section 1 of the Family Provision Act 1966 to allow increases in the fixed net sum which a surviving civil partner may receive from the estate of their deceased civil partner.
547.Paragraph 15 amends section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 by adding civil partners and former civil partners to the class of persons entitled to make an application for reasonable financial provision from the estate of their deceased civil partner. The amendment to section 1 of the 1975 Act also allows an application for financial provision from the deceased’s estate to be made by 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 in the same household as the deceased and as if s/he was the civil partner of the deceased. This is done to preserve the effect of the decision in Ghaidan v. Mendoza 2004 UKHL 30.
548.Paragraph 16 amends section 2 of the 1975 Act by extending the court’s powers to enable it to make orders varying any settlement made on the civil partners either during the civil partnership, or in anticipation of one being formed, including any variation in favour of any children of both the civil partners or of any person treated by the civil partners as a child of the family in relation to the civil partnership.
549.Paragraph 17 amends section 3 of the 1975 Act by providing that the court, when considering an application for reasonable financial provision from the deceased’s estate by a civil partner or a former civil partner, shall take into account the duration of the civil partnership and what the applicant might have received had the civil partnership been ended by being dissolved instead of by death.
550.Paragraph 18 amends section 3(2A) of the 1975 Act. Section 3(2A) of the 1975 Act sets out additional matters to which the court shall have regard when an application for financial provision from a deceased’s estate is made by a person who lived as the husband or wife of the deceased. The amendment to section 3(2A) ensures that the court shall also have regard to these additional matters when a person, who lived with the deceased as his or her civil partner, makes an application.
551.Paragraph 19 amends section 6 of the 1975 Act by adding the formation of a subsequent civil partnership as an exception to the events that can cause an order for periodical payment to cease to have effect.
552.Paragraph 20 inserts a new section 14A into the 1975 Act. Section 14A provides that if a civil partner dies within a year of the making of a dissolution, nullity or separation order in relation to the civil partnership, and no application for financial provision has been made or determined, the court may treat a surviving civil partner who applies for an order under the 1975 Act as if the dissolution, nullity or separation order had not been made.
553.Paragraph 21 inserts a new section 15ZA into the 1975 Act. Section 15ZA empowers the court, when making an order to end a civil partnership either by dissolution, or by nullity, or by separation or by presumption of death, (or at any time after making such an order), to order that neither of the civil partners, on the death of the other, shall be allowed to make an application for reasonable financial provision out of the deceased partner’s estate.
554.Paragraph 22 inserts a new section 15B into the 1975 Act. Section 15B extends the powers contained in section 15ZA to civil partnerships that were ended overseas.
555.Paragraph 23 amends section 16 of the 1975 Act so that a court hearing an application for reasonable financial provision from the deceased’s estate can vary or discharge secured periodical payments orders made prior to the death of the deceased under Schedule 4 to the Act.
556.Paragraph 24 amends section 17 of the 1975 Act to allow for the court hearing an application for reasonable financial provision from the deceased’s estate to vary or revoke any maintenance agreement made between civil partners prior to the death of one of them.
557.Paragraph 25 inserts a new section 18A into the 1975 Act. Section 18A provides that where a civil partner has been ordered by the court to pay a secured periodical payment to their civil partner or has entered into a maintenance agreement with their civil partner, and then has died, the surviving civil partner’s subsequent application to have the payment order or the maintenance agreement varied or discharged, may be treated as though it was accompanied by an application by them for reasonable financial provision from the estate of the deceased civil partner. The court may then make any order that it could have made on an application under the 1975 Act.
558.Paragraph 26 amends section 19 of the 1975 Act so that its scope covers civil partners, former civil partners and the formation of civil partnerships.
559.Paragraph 27 amends section 25 of the 1975 Act, the interpretation section, to insert references to civil partners and civil partnership as appropriate.