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Clarification on who can bring a probate claim

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In the recent case of Randall v Randall [2014), the former husband of the daughter and main beneficiary of her deceased’s mother’s estate, sought to dispute the validity of his deceased former mother-in-law's will.

In their divorce proceedings, the ex-husband and ex-wife had agreed a consent order to say that the ex-wife agreed to share part of any gifts she might receive in the future from her mother (whether in lifetime or in her mother's will).

The ex-husband argued that his rights under the consent order gave him sufficient interest in the ex- mother in law’s estate, to enable him to bring a probate claim seeking revocation of the grant taken out by his ex-wife as executor of her mother's will, and to challenge the validity of the will.

A court had to determine the preliminary issue of whether the ex-husband had satisfied the requirement to show an interest in the deceased's estate for the purposes of CPR 57 so that he had legal standing to bring the claim.

The High Court judge held that:

The ex-husband did not have a proprietary interest in the deceased's estate. His right to enforce the terms of the agreement that was sanctioned by the consent order represented a debt or potential debt owed by the ex-wife that could only be determined once the deceased had died. It was dependent on the whim of the deceased, in that she could have decided not to benefit her daughter in her will or during her lifetime, in which case, the ex-wife would have received no benefit that could be passed on to the ex-husband.  
Neither a creditor of a beneficiary of the deceased's estate, nor a direct creditor of the estate would have an interest in the estate for the purposes of CPR 57. This common law principle had been established in Menzies v Pulbrook and Kerr [1841], which was still good law. Whether a person had an interest in an estate rather than simply being interested in an estate (for example, as a claimant under the Inheritance (Provision for Family and Dependants) Act 1975) was to be determined by looking at the following:

Whether they were personal representatives (
The grant of representation.
The entitlement to a distribution of the estate.

This case provides clear confirmation of who has legal standing to bring a contentious probate claim under CPR 57. Although creditors of a deceased's estate can apply to the court to use its power under section 116 of the Senior Courts Act 1981 to allow it to take out a grant of representation (after passing over any person with a greater entitlement), they cannot challenge the appointment of an executor or question the validity of the deceased's will. It follows that creditors of a beneficiary of an estate cannot show sufficient interest to bring a contentious probate claim either.

The High Court judge also intimated that those advising on the terms of a consent order in claims for financial provision on divorce should consider joining in third parties (such as parents) to ensure that agreements to share future inheritances can be enforced.

If you have any questions in relation to this area please do not hesitate to contact Natasha McKeever or Katie de Swarte.

Author: Natasha McKeever