Children and Protected Parties – Can they Participate in Trust and Probate claims?

In many cases where there is a dispute over a trust or estate, one or more of the potential parties will be a minor child (that is, aged under 18). Cases may also involve parties who do not have the requisite mental capacity under the Mental Capacity Act 2005 to engage in litigation. Such parties are commonly referred to as ‘protected parties’.

The procedures for litigation by or on behalf of a protected party are covered by Part 21 of the Civil Procedure Rules (“the Rules”). The Rules say that a protected party must have a litigation friend to conduct the litigation on their behalf (unless the court orders otherwise). A litigation friend is someone who will fairly and competently conduct proceedings on behalf of the protected party. A litigation friend is required to act for the benefit of the protected party’s and to act in their best interests. The litigation friend can be a professional, or it can also be someone related to or connected with the protected party, such as a parent, guardian, or other family member.

A person can become a litigation friend by one of three ways:

1. If the protected party has a deputy appointed by the Court of Protection and the deputy’s appointment includes the authority to conduct litigation, then the deputy is entitled to be the litigation friend;
2. By order of the court following an application; or
3. Without an order of the court, provided that person can fairly and competently conduct proceedings on behalf of the protected party, has no adverse interest of their own, and (in the case of a claimant) undertakes to pay any costs which the protected party may be ordered to pay in relation to the proceedings. This is subject to the right to be repaid from the assets of the protected party. Becoming a litigation friend through this method requires the proposed litigation friend to file a ‘certificate of suitability’, setting out the aforesaid, at the time a claim is made (or if the protected party is the defendant, at the time of taking the first step in the proceedings).

The court retains a wide discretion when it comes to the appointment of a litigation friend. It can make an order that a litigation friend be replaced, that their appointment be terminated, or that a person cannot be a litigation friend.

Just as a litigation friend can conduct proceedings on behalf of a protected party, they can also compromise the claim and reach settlement on their behalf. However, no compromise, settlement or payment will be valid without the approval of the court. This is the case whether compromise is reached in the pre-action stage, before proceedings are issued, or whether there are active court proceedings. In order to obtain approval of a settlement reached before proceedings have been started, a claim must still be issued and evidence must be filed outlining, amongst other matters, the terms of the settlement. In most cases the court will also require the opinion of a barrister or solicitor on the merits of the settlement.

There are many situations in which a litigation friend may be required. Recent cases in which we have represented a protected party through their litigation friend include:

1. A claim under the Inheritance (Provisions for Family & Dependents) Act 1975, where the deceased’s will made no provision for his 8 year old child after the deceased divorced his wife several years earlier;
2. A claim under the Inheritance (Provisions for Family & Dependents) Act 1975 on behalf of the deceased’s teenage children after intestacy meant they received nothing from the estate;
3. A claim on behalf of a 16 year old challenging the validity of a homemade will made by her father shortly before his death on the basis of fraud/ forgery; and
4. An application for variation to the terms of a trust which would have a potential impact on minor and unborn beneficiaries. The appointment of a litigation friend was therefore required in order to represent the unborn and unascertained beneficiaries’ interests.

It is worth remembering therefore that even if a potential claim involves a protected party, they are able to participate in order to protect or establish an interest or entitlement in an estate or trust. However it is important to get things right from the start because any step taken before a child or protected party has a litigation friend is of no effect unless the court orders otherwise.

If you need advice in relation to a claim involving a protected party, please get in touch with Kate or with a member of our Wills, Trusts and Inheritance Disputes team.