Whilst the procedure for minor children pursuing all types of claims is the same throughout the courts, it is more likely that a minor child may find themselves in a position where they need to deal with an Inheritance claim during their minority than most other types of claim.
This is because other claims, such as personal injury claims, can still be pursued within a specified period of a child turning 18. However, when it comes to inheritance disputes there are often short timescales within which a claim needs to be pursued from the date of the deceased’s death.
A claim under the Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”) must be issued at Court within 6 months of the Grant of Representation. This is one of the most common types of inheritance claim a minor child may be forced to pursue. See our article on when such a claim may need to be pursued by a minor child here.
Who Speaks for the Child?
As a child is deemed too young to conduct litigation, the court rules provide a procedure for a litigation friend to be appointed to make decisions about the case until the child becomes 18. This is someone separate from their Solicitor who steps into the shoes of the child so far as the court proceedings are concerned.
A litigation friend will instruct the Solicitor to act for the child so they will make all of the key decisions in the case such as starting and concluding proceedings and making/accepting offers of settlement. The case is still pursued in the child’s name, via their litigation friend as their voice to the Court, so the legal right to pursue the claim and the facts relevant to the claim still centre on the child rather than the litigation friend themselves.
What happens if a case settles?
The key difference with a case which involves a litigation friend acting for a child is that if a settlement is agreed this is not enough to conclude the case. The litigation friend must make an additional application to the court to approve the settlement terms so that a judge can ensure the deal which has been struck is in the best interests of the child. This is the case even if a settlement has been reached prior to the litigation friend becoming involved in court proceedings.
This is a key feature of the court rules which ensures the protection of minor children from potentially unscrupulous or incompetent litigation friends who may negotiate a settlement which is not in the child’s best interests. It also gives the court the opportunity to ensure that any settlement monies are held in an appropriate form of trust fund for the child until they reach the age of 18.
Who can act as a litigation friend?
Normally in an Inheritance Act claim the best person to act as a litigation friend for a minor child is their surviving parent. This is because often these cases are pursued against a deceased parent’s estate where the surviving parent is the remaining guardian of the child and so best placed to be familiar with the child’s needs and to act in their best interests.
However, sometimes this isn’t possible or appropriate, perhaps if there is no surviving parent or if the surviving parent is making their own claim against the estate which would conflict with the child’s. In those circumstances, other litigation friends who would normally be appropriate would be a close family member or friend; somebody who is familiar with the child’s needs and can act in their best interests without being in a position where their personal interests conflict with the child’s or the other claimants.
A litigation friend must also be able to satisfy the court that they are capable of meeting any costs incurred in the case on the child’s behalf, albeit this is subject to their right to seek reimbursement of some or all of those costs from the child’s assets (including any award from the claim) at the conclusion of the case.
What if you can’t agree or decide who should act as a litigation friend?
If there is disagreement over who should act as a litigation friend for a child or there is nobody immediately apparent who can take up the role then ultimately the court will decide who should represent the child in the case.
The recent case of Re Keays (2018) confirmed this is the case but the judge stressed that the Court should be reluctant to impose a litigation friend on a parent if they disagree with their appointment to the role.
The court rules also specify that a judge can direct that a person cannot act as a litigation friend for the child and may stop someone acting who has started doing so. Instead the court can substitute another litigation friend in their place if they consider it appropriate.
The court can also order that the litigation friend’s costs of acting for the child in the case can be paid out of an estate if appropriate.
Instruct a Specialist
Helping a minor child through the extremely difficult world of having to pursue an Inheritance Act claim shortly after their loved one’s death is never easy and it is why it is so crucial that the right litigation friend and solicitor are appointed to help navigate them through these difficult months.
We would therefore always encourage those who think a minor child may have such a claim to call us as soon as possible after their loved one’s death to discuss their potential options and ensure that, as specialists, we can guide you both through the process as quickly and painlessly as possible.