Beneficiaries, whether under a will or the Intestacy Rules, may find themselves defending a claim brought against an estate of a deceased person in order to protect their inheritance. Executors or personal representatives of an estate must remain neutral in respect of any claims and not actively defend the claim. Instead they must preserve estate assets and pause making distributions to beneficiaries until the dispute is resolved. However in certain circumstances they may face a claim for their replacement or removal.
Charities may find themselves faced with claims when disappointed family members contest a charitable donation in a will when they believe they are not receiving what they are rightfully entitled to. Further issues for charities can arise where an estate is being badly administered or there are severe delays in the administration and the charity is unable to realise its legacy in a timely manner. This can heavily influence cash flow and project timelines and have a direct impact on the charity’s day-to-day activities.
Our previous article in this series explores the various claims which charities, executors/personal representatives, and beneficiaries may face, including the time limits for making those claims.
This article focuses on the time limits for responding or defending those same claims. It is important that beneficiaries and charities consider what their rights are in any given circumstance and early legal advice is always recommended to ensure that those rights are protected at minimum cost as well as ensuring that strict time frames for action are not overlooked.
Most probate claims (including will validity challenges, Inheritance 1975 Act claims, will construction claims) are brought under one of the following two procedures:
Part 7 of the Civil Procedure Rules
Part 8 of the Civil Procedure Rules
A wide variety of claims can be brought using the procedure in Part 7 of the Civil Procedure Rules, such as:
Claims for breach of trust. These claims would most commonly involve a breach of duty by a trustee or executor.
Claims under the doctrine of proprietary estoppel.
Probate claims.
The most common examples are Probate Claims, which must be commenced using the procedure in Part 7 under rule 57.3 of the Civil Procedure Rules. Probate claims can include, but are not limited to:
claims to prove a will in solemn form;
rectification of wills;
revoking a Grant of Probate;
claims for a declaration of presumed death or an order varying or revoking a declaration of presumed death.
The process under Part 7, very briefly summarised, is:
Claim Form with Particulars of Claim: Served together or separately. The claimant explains what they are seeking and the legal basis for the claim.
Acknowledgment of Service and Defence: Served together or separately. The defendant responds to the particulars of claim, confirming any facts in the claim which are admitted or denied, and the legal basis of their defence.
Reply: a reply to the defence is permitted but the claimant must file and serve their reply within 14 days if making a counterclaim or with the directions questionnaire if there is a just a defence.
Directions: following submission of the parties’ directions questionnaires, a hearing will take place in order to decide the next steps in the case. This can be varied and may include an order for the parties to engage in alternative dispute resolution (such as mediation).
Upon issuing a claim in court, the claimant has up to four months after issue of the claim form to serve this on the defendant, where it is being served within the jurisdiction. There are different rules for serving outside the jurisdiction.
If you are served with a claim form which includes particulars of claim, you have 14 days of the deemed service date of the claim to file an acknowledgment of service.
A defence must be filed within 28 days of service of the particulars of claim, provided you have filed an acknowledgment of service.
If the claim form does not include particulars of claim, you may wait until the particulars of claim have been served upon you. The claimant must serve the particulars of claim within 14 days of service of the claim form. Should the claimant fail to serve particulars of claim, you may apply to the court to strike out the claim.
Once the particulars of claim are served upon you, you then have 14 days to serve and file your acknowledgment of service and a further 28 days to file your defence.
A defendant and a claimant may agree between them to extend the period for filing a defence by up to a further 28 days without asking the court, but the court must be notified. Longer extensions require the permission of the court.
A defendant may bring a counterclaim without permission if it is filed and served with the defence. If a counterclaim is brought at any other time, the defendant must obtain the court’s permission. A party may not file a further statement of case after the Reply without permission of the court.
As above, the claimant can file a reply within 14 days of receipt of the defence and counterclaim. Where there is no counterclaim, the claimant can file a reply to the defence along with their Directions Questionnaire.
Missing these deadlines in a Part 7 claim puts you at risk of a Default Judgment being entered against you, meaning that the court may automatically rule in favour of the claimant because you failed to respond properly and in time.
Claims under Part 8 are used in disputes where the claimant seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact. They are most appropriate where a specific order is sought from the court, such as removal of an executor or a declaration as to beneficial interest in a property and/or to force a sale of a property. Examples of claims brought under Part 8 of the CPR include:
Claims under Part 64 of the Civil Procedure Rules, where the court is asked to determine questions arising in relation to the administration of an estate or the execution of a trust.
Applications under Section 116 of the Senior Courts Act 1981 to pass over a personal representative or executor before a Grant of Probate is issued;
Applications under Section 50 of the Administration of Justice Act 1985 to remove or substitute an executor or personal representative after a Grant has been taken out;
Claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 must be brought under Part 8 in accordance with rule 57.16 of the Civil Procedure Rules.
Claims under the Trusts of Land and Appointment of Trustees Act 1996. Applications can be made under this act by any person who is a trustee of land or has an interest in property subject to a trust of land. The court can make orders as to the trustees’ functions or the nature and extent of a person’s interest in property subject to the trust.
Proprietary estoppel claims, where there is only a matter of law for the court to decide and not fact.
The general procedure under Part 8 is similar to Part 7 but with some notable differences. A claimant must file a Claim Form and their written evidence on which they intend to rely in the form of a witness statement (rather than ‘particulars of claim’). These documents will set out their case.
Instead of a ‘defence’, as it is called under Part 7, a defendant would then respond with an acknowledgment of service and their written evidence (i.e. a witness statement) by way of reply.
An acknowledgment of service must be filed, served on the claimant and any other party to the proceedings not more than 14 days after service of the claim form and written evidence.
A defendant who wishes to rely on written evidence must file it when they file their acknowledgement of service (unless they have indicated in their AOS that they intend to contest jurisdiction, in which case the evidence must be filed within 14 days of filing the AOS if no such application is made)
An extension of time cannot be agreed between the parties to file and serve an acknowledgement of service. It must strictly be carried out in accordance with the Civil Procedure Rules.
However, the time for a defendant to file and serve their written evidence in response can be extended by up to 14 days. This must be agreed by the claimant and the court must be notified of any such agreement at the same time as filing the acknowledgment of service.
The key date is the filing date the acknowledgment of service (i.e. when you send the acknowledgment of service to the court) under practice direction 8A.7.5(2). The time cannot be extended by more than 14 days after this date. It would therefore be preferable for a defendant to file an acknowledgement of service as late as possible, in order to gain the maximum amount of time to file written evidence in response, when one considers that the extension runs from the date of filing of the acknowledgement of service.
A claimant can respond with further evidence in reply to the defendant’s written evidence. This must be done within 14 days of being served with the defendant’s written evidence.
The parties may agree in writing on an extension of time of not more than 14 days for serving and filing written evidence from the defendant and of not more than 28 days for serving and filing evidence in reply.
Counterclaims may not be made in Part 8 proceedings without the permission of the court. A counterclaim is made using Part 20 of the Civil Procedure Rules.
The crucial difference between Part 7 and Part 8 claims is that under the Civil Procedure Rules, default judgment is not available in Part 8 claims. Part 8 of the CPR is designed for claims without substantial factual disputes and because all evidence must be submitted upfront and verified by a statement of truth, the court determines the outcome on the merits rather than allowing a default. However, even though default judgment is not an option, respondents must still file an AOS and at the same time their written evidence, otherwise they cannot rely on any written evidence or take part in the hearing without the court’s permission and the court may proceed to determine the claim based on the claimant’s evidence alone.
The clock starts once you are served with the claim form and particulars of claim. Sometimes this will run from a date of ‘deemed service’, which is dependent on how the claim form was served (i.e. sent) to the defendant.
Part 6 of the Civil Procedure Rules contain the relevant rules on the different ways a claim form can be served, but the most common is by post whereby service is effective on the second business day after posting. In the case of an individual, this means posting the claim form to their usual or last known residence.
A claim under the Inheritance (Provision for Family and Dependants) Act 1975 must be brought by issuing a claim form in accordance with the procedure in Part 8.
Deadlines under the 1975 Act are specific and different to ordinary Part 8 claims. The deadlines relating to acknowledgments of service and written evidence are modified by rule 57.16 of the Civil Procedure Rules.
The modifications are that the time within which a defendant must file and serve an acknowledgment of service and any written evidence is 21 days from service of the claim form. This differs from the standard position, which allows a defendant 14 days. The claimant may file further written evidence in reply within 14 days.
As with any other Part 8 claim, the parties can agree in writing for an extension of time for a defendant to file and serve their written evidence in response by up to 14 days and of not more than 28 days for the claimant’s evidence in reply (CPR 8.5(9)).
Proceedings under the 1975 Act will occasionally be transferred to the procedure under Part 7. This is often the case where the parties recognise there is a major disagreement over the facts of the case, or where the court requires oral evidence to be heard rather than just written evidence.
A caveat against an estate is lodged with the Probate Registry, and it prevents a Grant of Probate being obtained. Someone wishing to remove the caveat may issue a ‘warning’ to challenge the caveat. This forces the person who entered the caveat (the caveator) to justify their claim.
Once served with a formal warning, the caveator has 14 days to take on of the following actions:
Enter an appearance (contest) to maintain the caveat. If they do respond by filing a formal appearance, this makes the caveat permanent, meaning it can only be removed by Court Order or mutual agreement;
Withdraw the caveat allowing the probate application to proceed;
Issue a summons and apply to the court for directions on how to proceed.
However if the caveator does nothing and 14 days pass with no response, the person ‘warning off’ the caveat can file an affidavit of service with the Probate Registry in order to have the caveat removed.
A stay of proceedings is a court order that temporarily or permanently halts a legal action or specific part of a lawsuit. It effectively stops all procedural steps from moving forward (and associated costs being incurred) unless the court allows them. The case can usually be resumed or the stay lifted at any time.
A stay can be agreed between the parties any time in litigation, once the claimant has served their claim form and particulars of claim, and the defendant has responded with at least an acknowledgment of service indicating they intend to defend the claim. The court must approve a stay and it would be preferable to seek agreement with the claimant prior to making an application so that it is made by consent. A stay can be a valuable tool which can afford a defendant time to prepare a defence and obtain any relevant documents, for example this can be particularly useful in the case of a claim which was issued without proper pre-action correspondence and exchange of documents.
Charities are often apprehensive that they will be perceived negatively for defending a challenge by disgruntled family members to a gift left to the charity by a deceased person or in defending Inheritance Act claims brought against an estate, where the charity is the sole residuary beneficiary or one of the residual legatees. Charities would much rather communicate effectively with the family and reach a compromise that benefits all involved, than incur the time and costs involved in litigation. However the charity trustees do have a duty to protect assets belonging to the charity and this includes legacies left to them in wills. It is therefore inevitable that some cases will end up in legal action, although the decision to initiate or defend proceedings must only be made in the best interests of the charity.
Any consequences or risks need to be considered and taken into account, such as the probable legal costs involved and whether or not these are likely to outweigh the value of the legacy. A balance must be struck between advising on the legal merits of a claim and approaching the situation with pragmatism, so as to avoid the pursuit of hostile litigation wherever necessary. It is also imperative that practitioners advising charities are mindful of negative public relation implications for the charity and must ensure that this is managed in parallel with any wider consideration of the dispute.
The consequence for your charity in not complying with the specific time limits in responding to claims, is that the charity will either not have an opportunity to properly defend the claim, or the claimant may obtain default judgment. For charities, many of whom receive around one third or more of their income from gifts in wills, it is vital to be aware of these time limits in order to avoid falling at the first hurdle and risk losing a valuable source of income based on procedural errors alone.
For further information, please contact our disputed wills team.
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