Court papers
Legal advice is strongly advised when responding to claim letters, and if the charity needs to protect its rightful income, legal costs can have an impact in decision making.
A balance needs to be found between legal costs, moral aspects, and charity income.
At IDR Law, we have years of experience taking the right course of action to protect your income, negotiate the best resolution, and stay out of court.
We are the only firm in the UK specialising in contentious probate, and we have over 100 years combined experience in settling inheritance disputes.
Its all we do.
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Identifying the claim
When you receive a claim letter, you will want to try and understand the situation, and establish the validity of the claim from the details in the letter. In order to do this, you need to understand the legal grounds on which the claim is being made.
Claim letters can vary widely in detail. Letters from lay-people such as beneficiaries or family members could have no grounds detailed, and they may not have all the details themselves. They may include a plethora of allegations that are entirely irrelevant to their claim!
If the letter is from a solicitor or legal representative, we would expect there to be detailed grounds on which the claim is based, although this is not always the case.
Further correspondence
If the first letter does not spell out the grounds, there can often be further correspondence before the claim can be fully understood. There might be several letters back-and-to before the nature of the claim is fully spelled out.
As you learn more details of the claim you can come back here to complete the claim checker assessment and gain a better understanding of the claim.
‘Wills do sometimes have more than one charity. Sometimes in cases where they have no close family they might choose several charities’
Do you communicate with those other charites?
‘Yes we absolutely do. We work together to avoid duplicating costs. Its a lot more beneficial if we are able to agree the way forward’.
‘There might be times when there is a conflict of interest, in which case we have to take our own advice, but if we can reach an agreement and coordinate with our fellow beneficiaries then we absolutely would do’.
Would you use the same law firm?
‘Yes, if there is multiple charities we would usually agree on one charity being the lead to coordinate things with the solicitor, again to cut down on costs’.
Martin Holdsworth from IDR Law adds…
‘Particularly if its a residuary. If five charities get an equal share of the residuary, then a claim will effect them all. So they are all in it together, and importantly, they have all got the same interests. As a result, they tend to instruct one law firm to represent the group’.
If there are multiple charities included in the contested will, IDR law can represent all affected charities to provide the best possible outcomes for all parties.
The time limit to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) is 6 months from the date of issuing of the grant of probate or letters of administration. Once this 6-month period has expired it is necessary to apply for the court’s permission in order to bring a claim.
After the expiry of the 6-month period Personal Representatives are able to distribute any part of the estate without having to take into account the possibility of an application to the courts for an order for permission to bring a claim under the 1975 Act. This means that they cannot be liable for carrying out their duties in distributing any part of the estate after the 6 months have passed.
There are a number of factors a court will consider in exercising its discretion under section 4 of the 1975 Act to allow an out of time claim to be brought. These factors were initially listed in the case of Re Salmon [1981] and more recently confirmed in Berger v Berger [2013].
The factors a court will consider are as follows:
Case law suggests that courts have unfettered discretion in deciding on such applications, allowing them to weigh up what is just and reasonable on a case-by-case basis. In Begum v Ahmed [2019] the Court of Appeal granted permission to a late claim on the basis that it was a strong claim, there was a lack of alternative remedy, and the claim would cause no real prejudice to other beneficiaries. The court can again be seen to exercise its discretion with reference to a number of the factors identified in Salmon in the case of Cowan v Foreman [2019]. Here, the strength of the claim, lack of prejudice to other beneficiaries and justification for delay all contributed to the final decision to allow the claim. A very similar approach was adopted in Re Bhusate [2020] where the Deputy Judge confirmed that under section 4 of the 1975 Act the court has the power to exercise uninhibited discretion to allow claims where it is just to do so. This approach was once again followed in Kaur v Bolina 2022, showing that courts will be inclined to allow an out of time claim where they are satisfied with regards to the above-mentioned factors that it is reasonable and proper to do so.However, it must be of note that strong evidence is still required to support the application and satisfy the given factors. Zarrinkhat v Kamal [2013] and Berger v Berger [2013] are examples of cases where a lack of credible and substantial evidence in providing a reason for the lateness of the application led to the court denying permission to the applicants to pursue their potential claims.
The simple answer to this question is no. Nonetheless, the later it gets the more difficult it may be to evidence a reason for the lateness of the application, and the more likely it may be that the administration of the estate has already begun or indeed ended. The court will of course also take into account the promptness in which the applicant sought permission, but this being only one factor, should it be considered just and reasonable on weighing up the reason for lateness, other remedies and the progression of administration of the estate to allow the claim then the court still has the discretion to do so. A good example of this is the prior mentioned case of Re Bhusate where the application was made over 25 years late.
1. Where an individual has concerns in relation to an estate they are able to lodge a Caveat against the Estate. This will prevent the Personal Representative from obtaining the Grant and therefore from distributing estate assets.
2. To lodge a Caveat, the individual must complete a EX160 and submit this to the Probate Registry.
3. It is important to keep a record of when the Caveat was lodged as they expire after 6 months.
4. It is important to consider whether the Caveat is justified. Typically, they are not typically justified in relation to
Inheritance (Provision for Family or Dependents) 1975 Act Claims.
5. Keep a record of the Caveat Reference Number.
6. Once the Caveat is lodged, proactive steps should be taken to the investigation of any potential claims.
‘The charity commission governs protocol in these situations’. [RG]
The charity commission guidance on whether to settle states that charities are ‘duty bound to defend their gifts’. [PB]
‘in most cases, you with your charity will be compelled to defend a gift’. [PB]
But deciding whether to settle is more about finding a balance, as Paul Brown of Legacy Link described:
‘I tend to view claims as objectively as possible. You have to kind of look at it and say ‘is it the right thing to do for the charity to fight this claim?’
‘because we are compelled to protect our charitable funds, and any gift is considered charitable funds, so [income] is a component in the calculation, but it’s not the be-all and end-all’.
‘Its not all about the money, its about moral judgements. A much better way to define it is to say ‘what is the right thing to do for the charity’?
‘Is it objectively the right thing to do for the charity to challenge to fight this claim?
‘Are there any other reasons why you shouldn’t?’
‘And then PR, considering what this looks from the outside. Through what lens does this feel like it’s the right thing which charity is doing?’
‘So there is lots of very subjective discussion’.
Rebecca Gray from Age UK said:
‘We do have some cases where we will know through experience that the claim is quite weak, but it still might be something we need to address, and potentially settle…’
‘Because we have to be aware of what it would look like if someone went to [a newspaper] and said ‘[The charity] wouldn’t let me have this, and I’m also [a vulnerable person]…’
‘[So we are] taking in that PR issue, as well as how successful they may be with any claim’.
So it’s a balance.
Relative legal costs are also part of that balance, and any charity naturally wants to limit their expenses disputing a claim.
Benjamin Williams from Cancer Research UK said:
‘Charities will very often, as should any sane person, try and stay out of court.
‘You tend to think its unlikely this will go to court, but we’re definitely going to be losing something here’.
‘We’re going to have to offer this person some money to go away because they’re clearly so aggrieved, and they’re not going anywhere’.
Paul Brown from Legacy Link said:
‘The vast majority of claims are negotiated out. The case where the courts cost so much they lost all the money in the estate, is the rarity rather than the norm. Ive settled dozens on the footsteps of the court on the day of the hearing’.
So whats the worst that can happen?
‘It depends how you define ‘worst’. From a financial point of view there is the cost – their gift might be completely lost if a claim is successful. Actually probably more dangerous from a charities side is the legal and PR implications of handling a claim badly. The worst case is ending up in court – I would say if you have ended up in court you have failed’. [PB]
For smaller legacy gifts, the legal costs might also outweigh the value of the lost income.
‘If it’s a small pecuniary legacy we probably wouldn’t get involved, but if there is a residuary matter, we almost definitely would get involved’.
‘If it’s say, like a 5 Grand Legacy, a 5 grand pecuniary, I don’t think we would even argue to be honest with you’.
‘If the legacy was over 5 grand that might change’.
[RG had a thing to say about this????]
So it’s a balance, but what is important is what is right for all parties…
‘Its not all about the money, its about moral judgements’. [PB]
As the only contentious probate firm in the UK, we have over 100 years combined experience making these judgements.
Finding the right balance is where we excel.
Contact our triage team for the support you need right now [worded better].
A Letter of Claim (sometimes referred to as a ‘Letter Before Action’) is a letter sent by the Claimant to the Defendant to put the Defendant on notice that Court proceedings may potentially begin to be brought against them.
In the context of the Civil Procedure Rules 1998 (CPR), which govern civil litigation in England and Wales, the Letter of Claim is an essential step of the pre-action process. The CPR encourages parties to initially try to resolve their disputes without immediately resorting to formal court proceedings. The Letter of Claim should, ideally, allow the parties to exchange necessary information to understand each other’s position, allowing for a better foundation on which to proceed and try to resolve the dispute.
A Letter of Claim should:
A well worded Letter of Claim, clearly setting out the Claimant’s position and expectations, can in some cases lead to a very quick resolution of the dispute, avoiding the need for costly litigation.
In reality, they can vary widely in detail. Letters from lay-people such as beneficiaries or family members could have no grounds detailed, and they may not have all the details themselves. They may include a plethora of allegations that are entirely irrelevant to their claim! often there will be further correspondence before the claim can be fully understood.
[Paul Brown article on scatter-guns]
Do not ignore the Letter of Claim. You must acknowledge receipt of the Letter of Claim within 14 days. This does not necessarily mean you have to respond within 14 days, but it will be useful to keep careful note of the deadline for responding if set out in the letter as to not miss it. If no deadline is set out on the letter, it may be worth reaching out to the Claimant to try and agree on such deadline, otherwise try to respond to simple claims within 14 days of receipt and more complex ones within 3 months.
In preparation for your response, try to collect all evidence, documents and communications which are relevant to the dispute. It is important to avoid being one-sided during this process, as to assess your position you will need to be aware of all potential evidence which may have an effect on the outcome of the dispute, whether it is positive or negative. Be very cautious about creating any new evidence or making any concessions or admissions which may become disclosable in litigation and harm your case.
On having collated all the necessary information on the case, and having carefully evaluated the claim and its merits, you will be in a much stronger position to prepare an informed response to the Letter of Claim. A response letter should include the following:
Once the Claimant has received the response and is aware of the position you are taking the next pre-action steps can be taken to proceed in trying to resolve the dispute.
Always take legal advice.
Contact IDR Law
Claimants may send through evidence to support their claim.
This may include:
The exact point at which Personal Representatives (PRs) are expected to notify a charity beneficiary of entitlement to a legacy under a will is not stipulated by the law. It is for this reason that PRs may contact charities concerning their entitlement at any point in time, this may be very soon after death, much later down the line, or indeed not at all.
more reliable option for charities is to subscribe to a legacy notification company (such as Smee and Ford), which scan thousands of wills every week in order to alert charities as soon as possible of any entitlements.
Once PRs have received a grant of probate the will becomes a public document which can be accessed freely. This allows legacy notification companies, usually through the use of high-end data collection technology, to scan through these wills and identify under which ones a charity is entitled to a legacy as well as the details of such entitlement.
The company will then proceed to notify the charity of their entitlement under the will, allowing the charity to initiate contact with the PRs, if there has not yet been any, to gain a better understanding of the progress of the distribution of the estate.
Smee and Ford began informing charities of bequests in 1972. Since then, the company has grown rapidly, collecting full data on UK legacy giving to all charities from 2012 onwards. Recently they created the Legacy Analysis Portal where clients can view dashboards of information about their legacy income and access their notifications.
The company’s Named Legacy Reports let charities know if they have been named in a will within weeks of it passing through probate. It contains all the details from the issued grant of probate including the name and address of both the legator and the executors, the gross and net estate values, full bequest information, any conditions relating to the will and details of other charitable beneficiaries. Charity beneficiaries can access notifications and download a pdf. copy in the Legacy Analysis Portal. Further to this if the legator is in England or Wales the charity will also receive a copy of the will and the grant of probate.
They also offer a discretionary legacy service, which notify charities of their potential claim to a discretionary legacy, allowing them to approach PRs with a targeted plea.
