Procedural provisions for inheritance claims

District Judge John Frenkel considers procedural aspects of applications under the Inheritance (Provision for Family and Dependants) Act 1975The undead rulesSchedule 1 to the Civil Procedure Rules 1998 (CPR) applies order 99 of the Rules of the Supreme Court to all applications under the Act, whether in the Chancery Division, Family Division or the county court.

Order 99 is not a complete code.

The provisions of CPR part 8 and practice direction 8 apply so far as order 99 does not contain an express contrary provision.

The Family Proceedings Rules 1991 (FPR) do not apply to proceedings under the Act, except to the limited extent to which rule 10 applies them.

It is a well-kept secret that article 2(1) of the High Court and County Courts Jurisdiction Order 1991 gave the county court unlimited jurisdiction under the Act.The procedural skeletonThis is what part 8 and its practice direction say:l The claimant must use the part 8 procedure;l The supporting evidence must be filed with the claim and served on the defendant with the claim;l The defendant must file an acknowledgement of service if he intends to defend the claim;l The claim is treated as allocated to the multi-track (and so CPR part 26 does not apply), and;l The court may give directions as soon as the claim is issued on the claimant's application or its own initiative.

Alternatively, the court will give directions for the disposal of the claim as soon as practicable after the defendant has acknowledged service or after the period for acknowledgement has expired.In practice, unless the claimant proposes directions to be served with the claim, it is unlikely that the district judge will give directions before service.

If the personal representatives (PRs) expect the claim, the parties should agree a case summary and directions.

Because the court will not send out the part 26 allocation questionnaires the district judge is unlikely to see the file until a party asks for case management directions.

The district judge will expect a case summary and either a request for a case management conference (CMC) or a draft directions timetable.Practice points - the claimA claim cannot issue before a PR is appointed to the deceased's estate.

If the executors or beneficiaries have not taken the grant, the applicant must, as a preliminary step, appoint a PR or take a grant himself.

Usually, the claim form will simply ask for an order that such reasonable financial provision as the court may think fit be made out of the deceased's net estate.

There should be a separate paragraph if there is an application (among other matters):l For permission to bring the claim outside the six-month time limit (section 4).

Under section 2, time runs from the date of grant and not from the date of death.l To treat nominated property as part of the net estate (section 8).l To treat the deceased's severable share of joint property as part of the net estate(section 9).l To set aside a disposition made with the intention of defeating the provisions of the Act (section 10).Do the claimants' interests conflict? For example, a widow and her children may have been separately dependent on the deceased.

Claimants with conflicting interests can sever and appear separately at the final hearing (RSC order 99, rule 6).Evidence in support CPR rule 8.5 requires the claimant to file with the court a witness statement to support the claim.

Although RSC order 99, rule 3 allows the claim to issue without supporting evidence, rule 8.5 should be followed.

The claimant's title to sue must be strictly proved.

A widow(er) must exhibit the marriage certificate, a former spouse the decree absolute and a child their full birth certificate.

To prove the claimant's financial resources and needs why not annex a completed financial information statement in form E from the FPR? That way, no relevant financial fact will be overlooked.The evidence in answer Under RSC order 99, rule 5 the PR must file with the court a witness statement within 21 days after service of the claim and state:l Full particulars and the value of the deceased's net estate.l The addresses of all living beneficiaries, with particulars of their interests.l Whether any living beneficiary is a child or a patient.The defendants do not have to give evidence of their means.

The rule gives them the opportunity to do so.

The court will infer that any beneficiary who does not disclose their means has adequate financial resources without recourse to an inheritance.Who's a proper party?Will the PRs agree to defend the estate? If they do, no other persons generally need be joined as a defendant.

The PRs choose the evidence to defend the estate.

If the beneficiaries are divided about the policy the estate should adopt towards the claim, the PRs may apply to court for a Beddoe order.

This order avoids the risk of a beneficiary later challenging the PRs' right to an indemnity for costs out of the estate because the expenses were not properly incurred.

Is there a claim to treat nominated property or the deceased's severable share of joint property as part of the net estate or an application to set aside a disposition made to defeat the claim? If so, any persons affected must be made a defendant.Do the PRs wish to adopt a neutral stance, take no part in the proceedings and abide by the court's decision to save the estate the cost of defending the claim? Consider these points:l If the claim succeeds, it will usually ratably reduce the residuary beneficiaries' interest.

Which beneficiaries wish to be added as the active defendants?l Will the interest of any other beneficiaries be affected by a successful claim? Have they been notified of the claim? Should they be invited to apply (before a specific date) to be a defendant or to file evidence of their means?l Are any affected beneficiaries minors?l Should a beneficiary be declared a representative of a class of beneficiary, for example, specific or residuary beneficiaries?l Should the court make a representation order under CPR rule 19.7 (2)(d)(ii) if the residuary beneficiaries are numerous or cannot readily be ascertained?Case management pointsThe size of estate determines whether the claim shall be tried in the High Court - otherwise the convenience of the parties usually means a county court trial.

In the High Court, the claim should proceed in the Family Division unless a proprietary claim must be resolved as a preliminary issue to determine the value of the estate when the Chancery Division may be more appropriate.

A proprietary claim will claim to an interest in the deceased's property, for example, under an express, constructive or resultant trust, a proprietary estoppel or donatis mortis causa.

The Family Division and the county court are better venues for deciding family claims.

Many claims are suitable for a CMC to be conducted as a family dispute resolution appointment (FDR).

The directions can include the date for the parties to exchange CPR part 36 offers.

The interested parties may be ordered to attend the FDR.

Family solicitors, the family Bar and district judges know how an FDR should be conducted.

Unless there is a proprietary claim to be decided as a preliminary issue, all levels of judge, including Principal Registry Family Division district judges, have concurrent jurisdiction to determine a statutory claim under the Act (CPR PD2 paragraph 3.2).

Relevant factors to determine the trial venue are the value of the estate, any local arrangements and the state of the court's business.Whether the claim settles or proceeds to a contested hearing do not forget RSC order 99, rule 7.

A memorandum of the order must be permanently annexed to the grant in accordance with section 19(3).District Judge John Frenkel sits at the Bristol Civil Trial Centre and is President of the Association of District Judges