We are often instructed by the executors or administrators of an estate where a claim has been threatened by someone under the Inheritance (Provision for Family and Dependants) Act 1975. These can be anything from children whose parent has disinherited them, to mistresses who have had secret affairs over a long period of time without the deceased’s family knowing anything about it. The first question which the executors often ask is ‘do I have to do anything?'
It is worth considering at the outset whether the purported Claimant actually has the right to bring a claim (classes of Claimants are set out in s1 of the Act). For example, we have previously been threatened with claims from grandchildren who have no right to bring a claim under the Act. In those cases, a short letter pointing out the fact that no claim can be brought should conclude matters.
However, where a Claimant does have the right to bring a claim, then the executors will have to deal with this. Hopefully the Claimant’s solicitors will follow the ACTAPs protocol (which is very similar to the other pre-action protocols) which encourages early disclosure and negotiation. If they do not, they should at least follow the general protocol on pre-action conduct which is set out in the White Book.
Whilst there is a potential claim outstanding, executors should not distribute the estate – and any that do will be personally liable in the event that the claim is later taken and succeeds. The limitation for an Inheritance Act claim is 6 months from the date of the Grant, but a Claimant then has 4 months to serve proceedings - so executors who are aware that there might be a claim may have to wait 10 months before distribution. Even where the time limit has been missed, the Court has discretion to allow the claim to proceed out of time, although the executors are unlikely to be criticised where they could not have known of the claim in advance.
All purported claims must be taken seriously and investigated properly, even if the executors feel strongly that there are no merits. Failure to do so may risk liability for the executors, and a professional negligence claim against solicitors who do not advise clearly.