What should an executor do if served with 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 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. The reason for this very short time limit is to try and prevent there being any undue delay to the administration of the estate. Although claims can also be brought after this six-month deadline in certain circumstances.

For executors, the threat of a claim under the 1975 Act against the estate is likely to just add stress and uncertainty to their already thankless task of administering the estate. It can also delay and complicate matters considerably. Particularly if they and/or their family members are also beneficiaries of the estate whose inheritance is now being threatened.

If such a claim is threatened, the executor(s) should seek legal advice and delay making any payments out to the existing beneficiaries until the six-month deadline has passed. It would then be advisable to wait a further four months until the deadline for service of any claim has also passed. That way the executor(s) can be certain that a claim has not been issued before the deadline, without them knowing.

The reason for this is to protect the executor(s). If they wait the six months and no claim is brought, they can’t then later be penalised for making payments out to the beneficiaries.

Whereas if the executor(s) pay the beneficiaries before the six months and a claim is then brought, they could later be held personally liable (made to pay from their own pocket), if the claim succeeds and money can’t then be recovered from the beneficiaries to pay the award.

If an executor is served with proceedings under the 1975 Act, then they should remain neutral and provide the Court with the relevant information relating to the estate, as required by the Civil Procedure Rules. An executor who remains neutral can expect to recover their costs and expenses (to the extent they are reasonably incurred and reasonable in amount) from the estate and avoid being ordered to pay anybody else’s costs.

It should be on the beneficiaries whose inheritance is being threatened to defend such a claim, should they wish to.

If the executor is also beneficiary, then they may wish to actively oppose the claim to try and protect their inheritance. In these circumstances, it is often advisable for that individual to put in two separate witness statements and potentially have two separate solicitor files – one as an executor and one as a beneficiary. That way everyone can be clear over what costs and expenses were incurred by that individual as executor (which should be recoverable from the estate), and what costs were instead incurred in a beneficiary capacity.

If you believe that you 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 24 April 2024, Anthony Gold partner David Wedgwood and solicitor Christopher Hatton will be hosting a seminar with Radcliffe Chambers to discuss when estates get out of hand. To register, click on the banner below: