- October 10, 2016
- By Clare Kelly
- 0 comments
What is the role of an executor in inheritance act proceedings?
Those who have been left out of a will, or who have not received as much as they expected, may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate of the deceased. What is the role of the executor in such circumstances, and what happens if the executor is also the beneficiary?
The executor, in their role as executor, is expected to adopt a neutral stance on the claim. The executor will be a defendant to proceedings if they have to be issued, and will have to file a witness statement setting out details of the net estate, but is not expected to go much further or to actively defend the claim. Of course, there are occasions where it might be necessary to give further evidence – for example where the claimant wants further information about assets or liabilities of the estate – but as a general rule, the executor is expected to simply abide by any order of the Court.
So long as the executor remains neutral, they will be entitled to their costs of the matter out of the estate on the indemnity basis (Alsop Wilkinson v Neary  1 All ER 431).
Where an executor is also a beneficiary, they may be providing the neutral information required in their role as executor, but choosing to provide further evidence and a defence in their role as beneficiary. A beneficiary may well want to defend a claim under the Inheritance Act, either by questioning the evidence put forward by the Claimant or by putting forward a competing claim. They will not be taking a neutral stance, and indeed claims of this sort can be extremely emotional and very hard fought.
When the executor is acting in their role as beneficiary to defend the claim then they will not automatically be entitled to their costs from the estate. As with most civil litigation, costs tend to follow the event and so there are risks for beneficiaries when defending. If acting for both executor and beneficiary, it is worth keeping a note of the separate costs (the costs of the executor should be quite limited) so that they can be paid from the right pot at the end of the case.
As for representation, prima facie there is no reason that one solicitor cannot act for a sole executor and beneficiary and indeed this should keep the costs of the matter down. However, where there are multiple executors/beneficiaries, solicitors should be very careful to ensure that there are no conflicts of interest. A conflict might arise where one beneficiary wishes to defend and another does not, or where one wishes to bring a competing claim, and if a conflict is not identified at the outset then the solicitor may end up not being able to act in the matter at all.