Posted: Friday, 4 January 2019 @ 13:43
If you are dealing with an Inheritance Claim as an executor here are some useful specific pointers compared to other aspects of litigation:
Conservative on Distribution
Whilst, in accordance with
pre-action protocol arrangements, applicants should engage in correspondence
with the executors and/or beneficiaries of the estate prior to bringing
proceedings, this does not always happen, so the estate may be unaware of a
claim until it is served.
What about where the executor is
on notice of a potential claim but this has not been issued within six months
(or longer) of the date of the grant?
In this situation, it would be
sensible for the executor to give the intended claimant notice of any
proposed distribution of the estate. If
in doubt about whether the estate should be distributed, the executor can seek
directions from the court under Part 64 of the Civil Procedure Rules.
Executors should not distribute
estates for at least six months from the date of issue of the grant (apart from
paying out small legacies, which it will often be appropriate to do). This is because potential applicants have six
months from the date of the grant in which to issue proceedings under the 1975
Executors who wait for six
months from the date of the grant before distributing the estate are granted
protection from liability, under the 1975 Act.
Indeed, executors should, in
fact, wait for 10 months from the date of the grant before distributing the
estate, given that applicants have four months from issuing proceedings in
which to formally serve the same.
There is no Practice Direction
to the Civil Procedure Rules relating to IPFDA Claims dealing with preaction
conduct provides that, in cases not covered by any approved protocol, the court
will expect the parties to act reasonably in exchanging information of
relevance to the claim and generally in trying to avoid the necessity for the
start of proceedings.
You can propose to follow the
ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (“the
Be Organised With Documents
One of the crucial aspects of
the IPFA Claim is the ability to link or (unlink) if acting for the Executors
between the parties.
Given this as the lawyer you want to have a thorough overview
of the documents which can include the following:
Grant of Probate/letters of administration
Letter of Wishes/Any relevant correspondence on
will making intentions Birth Certificates
Bank Statements/Credit Card Statements of both
deceased and applicants
Photographic /Email evidence of relationship
Evidence of Applicants – debts/financial needs
Evidence of Applicant Earnings
Photographs, Cards – Evidence of Applicant
Linking to Deceased/ Evidence of Deceased Linking to Non-Applicant