Election of Claim

 In Wills

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ELECTION OF CLAIM

Hot off the press is the recent decision in the case of Pinnock v. Rochester (2011)(transcript yet to be approved) where Sales J confirmed that a Claimant may make a claim for financial provision under Inheritance (Provisions for Family & Dependents) Act 1975 (the Act) and also launch a separate claim to challenge the validity of the Will.

The Facts

The brief facts of the case were that Mr Pinnock appealed against the striking out of his claim challenging the validity of his late father’s Will. The deceased had executed his Will a mere three days prior to his death and there was an issue as to his testamentary capacity.

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Mr Pinnock brought proceedings under the Act and a settlement was agreed in the sum of £28,000.00.

Subsequent to the settlement Mr Pinnock issued proceedings to challenge the validity of his late father’s Will and the executrix and legatee applied for the claim to be struck out on the basis that he was precluded from bringing such a claim by virtue of the doctrine of election. Further, the executrix argued that it was an abuse of the court’s process and inequitable to bring such a claim when the Claimant had already entered into a consent order under the proceedings brought under the Act.

The Outcome

At first instance the Recorder struck out the Claimant’s claim.

On Appeal Sales J held that a claim by a child under the Act was ‘conceptually different’ from a challenge in respect of the validity of a Will. A child’s need for financial provision under the Act might be urgent but this did not preclude him from bringing a later claim in respect of the validity of the Will.

The Judge found that Mr Pinnock had not asserted the Will’s validity by accepting a compromise under the proceedings brought under the Act, nor was there anything in the consent order which ruled out the possibility of a challenge. He found that there was nothing in Re. Pointer (No.2)(1946) Ch324 Ch D which undermined that analysis.

Conclusion

It has been a common misapprehension that potential claimant’s could only choose to make one claim or the other. In future legal advisors should be careful when advising Claimant’s to consider all options and not to rule out more than one claim provided there are sufficient grounds. It is also a salutary lesson to those advising estates on settlement, to ensure that any such potential claims are specifically dealt with within the terms of any consent order.

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