The Executor's Role In Claims Under The Inheritance (Provision For Family And Dependants) Act 1975

• Published date: 25 January 2021
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Ashfords LLP
• Author: Rebecca Milton

A claim under the Inheritance (Provision for Family and Dependents) Act 1975 ('the 1975 Act') is not a hostile claim against the estate; rather it is a claim concerning the division of the net estate. An executor owes fiduciary duties to the beneficiaries of the estate, whoever they turn out to be, and thus in claims under the 1975 Act executors are expected to adopt a neutral stance.

So what exactly is the executor's role when it comes to defending claims under the 1975 Act?

Distribution of the estate

The 1975 Act provides that any claim must be brought within six months from the date of the grant. Executors should not therefore distribute the estate for at least six months from the date of the grant (and best practice is to wait another four (ten months in total), as applicants have four months from the issue of proceedings to serve them on the other parties). Executors who wait before distributing the estate are protected from liability under the 1975 Act.

Where a potential claimant has put an executor on notice of their claim but then fails to issue proceedings in time, to avoid any criticism the executor is advised to put the potential claimant on notice before making any distributions. Ideally, in such circumstances the executor should seek written confirmation from the proposed claimant that they no longer intend to pursue their claim. If an executor is in any doubt as to whether the estate can be distributed, the executor can seek directions from the court under Part 64 of the Civil Procedure Rules.

The Executor's role in Inheritance Act proceedings

While the executor will always be named as a defendant to the proceedings, his or her role will usually be limited to providing the parties with certain information and preserving the estate. Executors should not "actively defend" the claim (this is the role of the main beneficiaries).

It may not even be necessary for the executor to be legally represented at the final hearing of the claim and they should only be legally represented to the extent that it is necessary.

Costs

If an executor adopts a partisan role in the litigation, he or she runs the very real risk of a costs order...