Notional Estate Inheritance Act UK (2026): IPFD 1975 s.9 and Assets That Can Be Brought Back Into the Estate for Family Provision Claims

Notional estate is a legal concept created by the Inheritance (Provision for Family and Dependants) Act 1975 that allows the court to treat certain assets that do not form part of the deceased's probate estate as if they were part of the estate — for the purpose of making provision for a family provision applicant: (1) THE PROBLEM — ASSETS OUTSIDE THE PROBATE ESTATE: many significant assets pass on death outside the deceased's will and probate estate: (a) JOINTLY OWNED PROPERTY PASSING BY SURVIVORSHIP: property held as joint tenants passes automatically to the surviving joint owner by the right of survivorship — it does not pass under the will or intestacy and is not subject to the deceased's estate. On first death, the family home typically passes to the surviving spouse in this way; (b) NOMINATED ASSETS: certain assets (pension death benefits; life insurance policies; certain savings accounts) are payable directly to a nominated beneficiary — they do not pass through the estate; (c) PROPERTY SUBJECT TO A CONTRACT TO LEAVE BY WILL: where a person has entered into a contract promising to leave property to someone in their will (mutual wills; farm inheritance agreements; constructive trust arrangements), that property may effectively be pre-committed outside the testamentary estate; (2) WHY THIS MATTERS FOR FAMILY PROVISION: if these 'outside the estate' assets are large, a family provision applicant may face a situation where the probate estate is too small to satisfy their claim even though the deceased had substantial overall wealth. The 'notional estate' provisions in IPFD 1975 ss.8 and 9 address this problem by bringing some of these assets within the court's power to make provision; (3) THE COURT'S POWER: where the court finds that the deceased's estate does not contain sufficient property to make reasonable financial provision, it can designate property from outside the estate as 'designated property' and treat it as if it were part of the estate for the purposes of making an order.

Section 9 of the Inheritance (Provision for Family and Dependants) Act 1975 deals with property in which the deceased had a severable share — primarily jointly owned property: (1) THE S.9 MECHANISM: where the deceased was at death beneficially entitled to a SEVERABLE SHARE of any property — i.e. a share that could have been severed and disposed of by will, but which passes by survivorship — the court can treat the severable share as part of the notional estate available to satisfy a family provision claim. The court has an absolute discretion under s.9(1) whether to exercise this power; (2) WHAT PROPERTY IS CAUGHT: s.9 applies primarily to jointly owned property held as JOINT TENANTS (where the right of survivorship applies). It does NOT apply to property held as tenants in common (where each owner can dispose of their share by will — those shares already form part of the probate estate); (3) THE KEY CONDITION: for s.9 to apply, the court must be satisfied that the deceased's net estate (the probate estate) is insufficient to make the provision the court would wish to order. The court will not invoke s.9 if there are adequate estate assets; (4) THE COURT'S DISCRETION: even if the conditions for s.9 are met, the court has discretion whether to designate the jointly owned property and in what amount. The court will consider: (a) the surviving joint owner's own financial position and needs; (b) the nature of the joint ownership and the parties' intentions; (c) the contribution each party made to the jointly owned property; (d) the claimant's financial needs and the amount of provision required; (5) EXAMPLE: husband and wife own the family home as joint tenants. Husband dies, leaving the house passes to wife by survivorship. Wife also inherits the residue under the will. A child from husband's first marriage applies under the Inheritance Act. The probate estate (residue) is small. The court may use s.9 to designate a proportion of the family home as part of husband's notional estate — but will be cautious to avoid leaving the wife homeless.

As well as survivorship property, the IPFD 1975 contains specific anti-avoidance provisions for lifetime disposals: (1) SECTION 10 — DISPOSITIONS INTENDED TO DEFEAT APPLICATIONS: s.10 applies where the deceased made a disposition of property within SIX YEARS of death with the INTENTION of defeating a potential family provision claim. The court can order that the property (or a proportion of it) be provided for the applicant out of the donee's hands. Key conditions: (a) the disposition must have been made within 6 years of death; (b) the deceased must have intended to defeat a family provision application; (c) the disposition must have resulted in full valuable consideration NOT being received (i.e. it was a gift or undervalue transaction); (2) THE INTENTION REQUIREMENT: the court takes a broad view of 'intention to defeat' — it is sufficient that the deceased foresaw the possibility of a family provision claim and made the disposition in order to reduce the assets available. It does not require proof of a deliberate fraudulent motive; (3) SECTION 11 — CONTRACTS TO LEAVE PROPERTY BY WILL: s.11 addresses the specific situation where the deceased entered into a CONTRACT to leave property to a third party by will — rather than making an outright gift. If the contract was made with the intention of defeating a family provision application, the court can order the person who contracted to receive the property to provide money from it to satisfy a family provision order; (4) MUTUAL WILLS: mutual wills (where two testators agree to leave their estates in a specified way and neither can unilaterally alter the arrangement after the first death) are particularly relevant to ss.10 and 11. Where mutual wills have created a constructive trust, the surviving testator may be bound to leave the estate in the agreed way — but s.11 may allow a family provision applicant to challenge that arrangement; (5) THE SIX-YEAR WINDOW: the six-year window in s.10 means that lifetime gifts made more than 6 years before death are entirely outside the Inheritance Act's anti-avoidance provisions. A testator who makes substantial lifetime gifts early enough cannot have those gifts brought back into the estate for family provision purposes.

Yes — under s.9, the court can make an order against the surviving joint owner who has received the jointly owned property: (1) THE MECHANICS — DESIGNATING THE PROPERTY: where the court exercises its discretion under s.9, it designates the deceased's severable share (or part of it) as 'designated property'. The surviving joint owner becomes liable to provide the applicant with a sum not exceeding the value of the designated property; (2) THE SURVIVING JOINT OWNER'S PROTECTION: the court will NOT make an order under s.9 that leaves the surviving joint owner with insufficient resources for their own maintenance. The court will balance: (a) the applicant's needs; (b) the surviving joint owner's needs and financial position; (c) the value of the jointly owned property; (3) PRACTICAL LIMITS: in practice, courts are reluctant to invoke s.9 to force the sale of the surviving spouse's family home to satisfy a child's family provision claim. The surviving spouse's housing security is a strong competing interest. s.9 is more commonly used where: (a) the jointly owned property has high value relative to the claimant's needs; (b) the surviving joint owner is not the deceased's spouse; (c) the order would not leave the surviving joint owner in genuine hardship; (4) THE ORDER: the order made under s.9 is typically a MONEY PAYMENT from the surviving joint owner — not an order for the transfer of the property itself. The surviving joint owner can pay the award from their own assets if they do not wish to sell the joint property; (5) NOMINATED PENSION DEATH BENEFITS: pension death benefits paid to a nominated beneficiary are NOT within the current scope of s.9 (which deals with severable shares). However, pension trustees have discretion over who actually receives the death benefit — a surviving spouse or family provision claimant may engage directly with the trustees to argue for a proportion of the death benefit.

Planning to reduce the risk of notional estate claims involves balancing anti-avoidance rules with legitimate estate structuring: (1) UNDERSTAND THAT THE COURT HAS A BROAD DISCRETION: s.9 gives the court wide powers — there is no absolute way to guarantee that jointly owned property will never be reached. The best protection is ensuring that the deceased's estate makes reasonable provision in the first place; (2) SEVER JOINT TENANCIES STRATEGICALLY: if the testator severs a joint tenancy, their share becomes a tenancy in common that passes by will (not survivorship). This means the share is in the probate estate and subject to the standard Inheritance Act analysis — it is NOT caught by s.9 (which applies only to unsevered severable shares). However, severing the tenancy means the deceased can direct their share to their chosen beneficiary, which may itself attract a challenge if the intended beneficiary receives disproportionately large provision; (3) MAKE REASONABLE PROVISION FOR FAMILY MEMBERS: the most reliable protection against Inheritance Act challenges (including notional estate claims) is ensuring that the will makes reasonable provision for all family members who might have a claim. Even where the testator has good reasons to exclude a family member, providing something (rather than nothing) reduces the incentive to litigate; (4) LIFETIME GIFTS MORE THAN 6 YEARS BEFORE DEATH: under s.10, only gifts made within 6 years of death are potentially caught. Long-term estate planning that transfers assets substantially before the final illness is outside the s.10 window; (5) KEEP RECORDS: in any case where the deceased has entered into a contract to leave by will or made a significant gift, comprehensive records of the deceased's reasons (and the absence of any intention to defeat family provision claims) may be the key evidence in defending an s.10 or s.11 challenge.