Who Defends Claims Against My Estate?
Posted on in Dispute Resolution
Dealing with succession plans can be a daunting task, particularly where there are concerns about claims being made against your estate. You have prepared your Will, possibly with a Letter of Wishes making clear your true intentions – but who will really be responsible for dealing with any potential claims against your estate?
Are Executors Responsible for Defending Claims?
For many, it can be easy to assume that it will be those you have appointed to administer your estate (i.e., the Executors) who will be responsible for responding to a claim; and it is easy to see why. Whether appointing loved ones or professional executors, you are bestowing a great responsibility to ensure all of your affairs are wound up properly, and the wishes in your will are carried out.
However, the reality is that the role of your Executor is purely administrative. They are responsible for gathering your assets, paying liabilities, and distributing the remaining estate to your nominated beneficiaries.
What Role Do Executors Have in a Contentious Probate Dispute?
Executors must generally act impartially and are under a duty to remain neutral in contentious probate matters, such as disputes between beneficiaries or claims against the estate. This means Executors should avoid taking sides and instead facilitate the resolution of the claim while protecting the estate's interests. If Executors take sides in litigation, they may face personal liability for costs.
Who Decides Whether to Defend a Claim Against the Estate?
Meanwhile, beneficiaries are the individuals or entities who are entitled to your estate once all liabilities and administrative expenses have been settled. They have a vested interest in the outcome of any dispute and will ultimately decide whether or not to defend any claims.
However, it should be noted that the costs incurred by beneficiaries in such litigation are not considered administration expenses and must be borne personally unless the court orders otherwise. This may occur, for example, where a dependent has been disinherited and decides to bring an Inheritance Act Claim against the Estate – but each case will turn on its own facts.
It is also important to differentiate between the different categories of beneficiaries and apply a cost-risk analysis to defending or pursuing any claims.
A “residuary beneficiary”, who will usually receive the bulk of the estate, is more likely to have sufficient financial interest to warrant defending the claim. Meanwhile, a “pecuniary legatee”, which is the legal term for a recipient who is bequeathed a specific sum of money, may feel the costs do not justify becoming involved, unless a) the gift is substantial or b) the claim will materially affect their entitlement.
What Happens if an Executor Is Also a Beneficiary?
The position can become muddied where an individual is both an Executor, and a Beneficiary and it is critical to keep these roles separate. This is particularly the case for Executors who are duty-bound to remain neutral and must not allow their personal interests as beneficiaries influence their administrative duties. To manage this, it is not uncommon for such individuals to instruct separate legal representation for their roles as Executor and Beneficiary, or to ensure that costs and responsibilities are clearly allocated to the appropriate role.
Who Defends a Claim Against an Estate?
Ultimately, and assuming a claim is raised against your estate, it will be your beneficiaries who choose whether or not to take up a defence of the claim – not your Executors. This, however, is not guaranteed and will depend on a number of factors, including the nature of the challenge, proportionality, personal interest and the realities of cost.
How Can Tozers Help?
Effective succession planning can reduce uncertainty and help guide those left behind. Our Wealth Management team can support you with structuring your Will, preparing a carefully considered Letter of Wishes, and making strategic decisions around appointing Executors.
From a dispute resolution perspective, our specialist team regularly advises beneficiaries, executors, trustees and charities on defending or pursuing claims, including Inheritance Act disputes, will-validity challenges, proprietary estoppel, and legacy-related litigation. We help clients assess cost-risk, understand their options, and make proportionate, evidence-based decisions about whether to advance or resist a claim.
Whether you are planning ahead or facing a dispute, Tozers can provide clear, practical guidance to protect your interests and support you through every stage of the process.