Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) are on the rise – and often land on the desks of executors and beneficiaries who were never expecting a legal dispute. For non-contentious private client lawyers, understanding how to navigate and pre-empt these claims is now an essential skill, particularly when advising clients on will drafting, probate administration, and post-death risk management.
Executor vs Beneficiary: Know the Distinction
The first step is to clarify the role of your client. Are they an executor, a beneficiary, or both?
- Executors must remain strictly neutral. They are responsible for providing full and honest disclosure of estate information and notifying relevant parties. If they adopt a partisan position, they may lose the protection of estate-funded legal costs and risk personal liability.
- Beneficiaries are entitled to defend claims – especially where their inheritance is at risk. However, they must fund their own defence unless the court orders otherwise.
When your client is wearing both hats – a common scenario – ensure they understand the need for separate legal advice and separate representation. Blurring the lines can result in adverse costs consequences.
Distributing the Estate: Proceed with Caution
Although technically permitted, distributing the estate before the IPFDA limitation period expires (six months from the grant of probate) is risky. If a claim is later brought and the estate has already been paid out, executors and personal representatives can face personal liability.
Best practice is to delay distribution if there’s any indication of a potential claim, or to make interim distributions on terms that preserve a reserve and secure indemnities.
Practical Advice When Claims Arise
When a claim is issued, private client lawyers should help their executor or beneficiary clients:
- Stay objective. Courts are not concerned with past grievances or moral judgements. The central question is whether the claimant’s financial needs have been met.
- Scrutinise the claimant’s evidence. Inflated or speculative claims are common. Demand full financial disclosure and test the reliability of what is presented.
- Be open to early settlement. Where a claim has some merit, early offers can reduce cost exposure. Courts expect a constructive attitude to ADR – failure to engage in mediation may lead to adverse costs orders.
- Consider the impact on benefits. If the claimant is on means-tested benefits, a large award could leave them worse off. This can be a useful point in negotiations.
Plan Ahead to Minimise Risk
While defending claims is often reactive, many risks can be avoided with better foresight:
- Identify vulnerable beneficiaries or excluded dependants during will drafting
- Advise clients candidly about likely flashpoints
- Keep thorough records of testators’ reasons for their decisions
Conclusion
For private client lawyers, defending IPFDA claims is no longer solely the job of litigators. Early intervention, clear advice, and robust risk assessment are vital to protect both estates and those administering them. Executors and beneficiaries depend on it.
John Lambe is Head of the Contentious Trusts and Probate team at Forbes Solicitors
