Bringing a claim under The Inheritance (Provision for Family and Dependants) Act 1975 before probate is granted
It used to be the case that in order to bring a claim under The Inheritance (Provision for Family and Dependants) Act 1975 (the “Inheritance Act”), it was necessary that a Grant of Probate or Letters of Administration, in respect of the deceased person’s estate, had to have been taken out. This sometimes caused problems, for example, the executor named in the Will was also the main beneficiary and wanted to try to thwart or delay such a claim, so they did not apply for probate.
However, that is now not the case, thanks to the Inheritance and Trustees’ Powers Act 2014, (“the Trustees’ Powers Act”) and Schedule 2 in particular, which has now been in force for a good few years.
For this reason, before the Trustees’ Powers Act, it used to be crucial when considering a claim under the Inheritance Act to check at the Probate Registry whether a Grant of Probate or a Grant of Letters of Administration had been taken out. Please note that such a search can still be conducted and should such a search come back negative – indicating that the probate has not been granted – a standing search may be placed at the Probate Registry. This is a request to be informed – within six months of the registration of the standing search – when probate, in respect of the estate of the particular deceased, is issued. Standing searches may be extended.
However, it still remains important to check at the Probate Registry whether a Grant of Probate or a Grant of Letters of Administration has been taken out because (unless extended by the Court, which is never guaranteed) the very short time limit of six months for bringing an Inheritance Act claim starts to run, as soon as probate has been issued.
Incidentally, if you want probate to be granted, the recalcitrant personal representative may be “forced” to take a grant by the procedure of citation. In the alternative, an application for that person to be passed over as the personal representative and someone else to be appointed in their place may be made under sections 116 and 117 of The Senior Courts Act 1981.
Also, it is important to remember that there are a number of grants limited to particular purposes, and which do not enable the personal representatives to distribute any of the estate without the permission of the court. These include a grant to collect the goods (a grant ad colligenda) or a grant taken out only to enable determination of probate proceedings (a grand pendent lite or ad litem). Such limited grants do not usually start the clock ticking for the purpose of claims under the Inheritance Act but legal advice should be taken on such grants.
If you would like to consider whether you have an Inheritance Act claim, our legal expert team will be happy to provide a free initial discussion. For further information or advice please get in touch with our dispute resolution, contentious trust and probate team on 01753 889995 or email enquiries@bpcollins.co.uk
