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What Are Some Good Tips For Defending An Inheritance Claim?

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:  

Be 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. 

Delayed Distribution 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 Act. 

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. 

Recognise Conduct

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 ACTAPS Code”).

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: •       Death Certificate •       Grant of Probate/letters of administration •       Will/former wills •       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