Protected Parties in Inheritance Disputes

Tomas Hayden, Legal Executive in our Inheritance Disputes team, explains how to approach inheritance disputes involving children and protected parties, and explains the role of litigation friends and the court's involvement in approving settlements.

Who Are Protected Parties in Inheritance Disputes?

Some individuals are legally unable to conduct litigation themselves. Under Part 21 of the Civil Procedure Rules, there are two categories of people who require additional protection:

1. Children, who is anyone under the age of 18; and
2. Protected parties, who are adults who lack mental capacity, within the meaning of the Mental Capacity Act 2005.

In this article, protected parties refers to both children and adults who lack capacity.

A protected party in an inheritance dispute may be a beneficiary of an estate which is subject to a claim, or a claimant themselves under the Inheritance (Provision for Family and Dependants) Act 1975 (“the IHA”).

If a protected party becomes involved in litigation, they must be represented by a litigation friend who’ conduct the proceedings on their behalf. For example, a parent may bring a claim under the IHA on behalf of a child where a Will or intestacy fails to make reasonable financial provision for them. In such circumstances, the child cannot conduct proceedings personally and must be represented by a litigation friend.

There is, however, an exception. In the case of a child, the court can make an Order dispensing with the requirement to appoint a litigation friend, but only if the court is satisfied that the child has sufficient maturity and understanding to conduct the litigation themselves, although in practice, this is very rare.

The Role of a Litigation Friend

A litigation friend must be able to fairly and competently conduct the proceedings on behalf of the protected party and must not have any interests that conflict with theirs. Notably, a litigation friend must also undertake to pay any costs orders made against the protected party. It is a significant responsibility and should not be taken lightly.

There are two ways to appoint a litigation friend: the person willing can either file a certificate of suitability with the court, or they can be appointed by court order.

Who Can Act as a Litigation Friend?

Usually, a parent, guardian or other family member will act as a litigation friend. However, if, for example, a mother is claiming against an estate that her children are beneficiaries of, she would not be suitable to act as their litigation friend as she has a conflicting interest.

What Happens If No Litigation Friend Is Available?

If nobody is able or willing to act for the protected party, the court many appoint the Official Solicitor, but this would likely increase costs.   

A litigation friend will no longer be required when a child turns 18 years old, unless that child lacks capacity making them a protected party.

Settlement of Claims

Whilst a litigation friend may step into the shoes of the person they are representing, they are unable to enter any settlement on behalf of the protected party without the court’s approval.

If proceedings have not commenced, a Part 8 claim will need to be issued to obtain the court’s approval. If court proceedings are already afoot, then an application will need to be made within the existing proceedings.

In both cases, a legal opinion on the merits of the settlement, which has been prepared by a barrister, will be required.  This requirement exists to ensure that any settlement is in the best interests of the protected party.

How We Can Help

Claims involving children and protected parties are subject to strict procedural safeguards. Mistakes can delay proceedings, increase costs, or jeopardise a settlement. Early specialist advice is essential to ensure the correct steps are taken from the outset.

If you require advice or assistance, our experienced Inheritance Disputes Team is here to help.