Bishop & Sewell
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Being named an executor for someone you care about is generally seen as an honour as they have placed their trust in you to manage their affairs after their death. However, the role also comes with responsibilities, and can involve a lot of time and work during a difficult period. The last thing that you would want is an additional dispute to deal with, particularly if it involves a member of the family or someone who was close to the deceased. However, frustratingly for executors, many and varied problems can arise which are the duty of the executor to deal with.

For example, what should an executor do if someone (let’s call him Peter) who had lived with the deceased (let’s call her Jane) for some time, but who is not a beneficiary to their will, asks the executor not to sell the property that Jane owned outright, and in which Jane and Peter had lived together.

The first thing to consider would be whether Peter might have a legal right to prevent a sale. A good starting point would be whether Peter could establish a beneficial interest in the property. This is because, although Jane might have owned the entire legal interest in the property, if Peter had contributed to the upkeep of the property, or otherwise shared a common intention with Jane that he should have an interest in the property, he could argue that a Constructive Trust had arisen. This would mean that Peter could have a right to a share of the value of the Property, which could prevent its sale.  In addition, if there are children living at the property then action could be taken under the Children Act 1989, again potentially preventing a sale. Although a lot would depend on what grounds Peter might have to advance a claim, if the executor tried to sell the property in any case, Peter could enter a notice or restriction at the Land Registry which would effectively prevent the sale until his claims had been heard.

Furthermore, as a litigator specialising in contentious probate matters, I would advise the executor to also consider whether Peter might be positioning himself to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”). Broadly speaking, the 1975 Act allows certain classes of people, who were dependent on the deceased before their death, but for whom reasonable provision has not been made in the will, to make a claim against the estate. The classes of people include spouses, dependent children and people with whom the deceased had cohabited for a period of 2 years before their death. As such, and if Peter had lived with Jane for 2 years before her death, it is possible that he might have a valid claim against the estate.

1975 Act claims involve financial rather than moral considerations, and therefore can be easier to settle than many claims. However, if decided by the court, a range of awards can be made, including awarding a lifetime right to occupy a property which then reverts to the estate. This is a remedy which could be employed in Peter’s situation (depending on his circumstances) to allow him to stay in the property, but preserve the capital for the other beneficiaries. If an award were made at all, it would be limited to what would be necessary for Peter’s maintenance, not as compensation for no provision having been made in Jane’s will.

The executor’s role in 1975 Act claims will usually be limited to providing the parties with certain information and preserving the estate, and they are expected to adopt a neutral stance with respect to any claim. Executors should not actively defend against it, and if they were to adopt a partisan role in the litigation, they would run a very real risk of a costs order being made against them personally. This is not to say that any such claim could not be defended, but actively defending a claim would be the role of the main beneficiaries. Whether the beneficiaries wished to do so would depend on the facts of the matter.

In the meantime, the executor should be aware that the 1975 Act provides that any claim must be brought within six months from the date of the grant.  Therefore, the executor should not distribute the estate for at least six months from the date of the grant. Best practice is to wait another four months (ten in total), as Peter would have four months from the issue of proceedings to serve them on the other parties. Executors who wait before distributing the estate are protected from liability under the 1975 Act, and this is particularly relevant where it seems that a claim might be likely.


Rachel Waller
is a Partner with the Litigation & Dispute Resolution department. If you need advice or assistance on any of the issues mentioned in this article, please contact Rachel or another member of our expert Dispute Resolution team on 020 7631 4141 or email litigation@bishopandsewell.co.uk

The above is accurate as at 11 April 2022. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.


Category: Blog, News | Date: 11th Apr 2022


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