Can a minor child or somebody who lacks mental capacity bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

The Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”) allows certain categories of people (including spouses, children, some cohabitants, and those being financially maintained) to bring a claim against the estate of a loved one for a larger share of the inheritance.

Under the 1975 Act, there is a deadline to bring such a claim within six months of a Grant being taken out from the Probate Registry. However, claims can also be brought after this deadline in certain circumstances.

This deadline can be particularly problematic for claims on behalf of minor children or individuals lacking mental capacity, who often have the worthiest claims of all.

Under the Court rules, a child under 18 or somebody who lacks mental capacity is considered to be a “protected party”. They must have a “litigation friend” in place to bring a claim (or defend one) on their behalf.

The role of a litigation friend is to deal with Court proceedings on a protected party’s behalf, in their best interests. This will usually involve them instructing solicitors, listening to their advice, and then giving them instructions to progress the proceedings. It can also involve them making or accepting settlement offers and even attending a trial as a witness.

A litigation friend is responsible for the costs/expenses of the protected party. However, they can usually recover any costs/expenses (to the extent they have not already been recovered in another way) from the protected party’s funds at the end of the case, so they are not out of pocket.

To be a litigation friend, an individual must confirm to the Court that they can conduct the proceedings competently and fairly on the protected party’s behalf and have no interests adverse to them. This will usually be a parent or other close relative or friend of the protected party. If there is nobody suitable and willing to act as a litigation friend, the Official Solicitor, (a Government body), can step in to act as a last resort.

Claims under the 1975 Act on behalf of protected parties are often very worthwhile and can lead to financial awards which will significantly improve that individual’s life. Inheritance can be claimed to cover the future cost of things like education, treatments, therapies, and care fees. An award by the Court or agreed settlement can also be structured to maximise the financial benefit to the protected party. For example, in some cases, a trust can be set up which ring fences the inheritance from the protected party’s means-tested benefits, allowing them to keep receiving their benefits in full.

If a settlement is reached on behalf of a protected party, then this needs to be approved by the Court even if it’s reached before proceedings have started.  The Court must be satisfied that any settlement is in the best interests of the protected party involved.

If you believe that you or a loved one have a claim under the 1975 Act or are being threatened with one, please do not hesitate to contact a member of our specialist contentious probate team.

On 19 June 2024, Anthony Gold partner Tom Dickinson and Senior Associate Solicitor Kimberley McGhie will be hosting a seminar with Ten Old Square Chambers to talk through the process of a 1975 Act claim. To register, please click on the banner below: