Claims under the Inheritance (Provision for Family and Dependants) Act 1975 occupy an unusual procedural position. They may be issued in the Chancery Division of the High Court, the Family Division of the High Court, or the County Court.
The starting point is whether the claim properly belongs in the High Court at all. In practice, that will depend on the value of the estate, the complexity of the issues, and whether there is any international element. High Court proceedings are generally reserved for larger or more complex disputes. Issuing there without justification often results in transfer to the County Court, particularly to a specialist Business and Property Court centre, with the attendant cost and delay that entails.
If the High Court is appropriate, careful thought must then be given to the division in which the claim is issued. The Chancery Division deals with these claims under Part 8 within the Property, Trusts and Probate List, governed by CPR 57.14 to 57.16 and Practice Direction 57. It is well suited to cases involving estate administration, trusts, or technical probate issues. In London, such claims are usually managed by a Master and may still be transferred if the court considers another forum more suitable.
The Family Division, by contrast, is often the better forum for spousal claims. Where the court is required to apply the “deemed divorce” test, the experience of Family Division judges in assessing needs, resources, and housing requirements can be useful. The same applies to claims brought by former spouses or cohabiting partners where the focus is on maintenance. In those cases, issuing in the Family Division is frequently the more effective course, provided the size of the estate justifies High Court proceedings.
For many claims other than large money disputes, the County Court is appropriate. District Judges commonly have family law experience and are well placed to deal with needs-based claims, particularly where housing is in issue (local knowledge of the housing market can be very useful). Issuing locally can also provide a degree of proportionality. That said, it is increasingly common for such claims to be transferred to larger hearing centres, (often the County Court at Central London for Kent cases, or a Business and Property Court District Registry). Practice Direction 57AA makes clear that 1975 Act claims are suitable for determination within the Business and Property Courts, and that specialisation has significantly influenced where these cases are ultimately heard.
There are procedural considerations. In Chancery matters, the original grant of representation must be filed physically and clearly marked as an original document. The court will also consider at an early stage whether the chosen venue is appropriate. Extended disclosure under Practice Direction 57AC does not automatically apply to these claims, although it can be directed in unusual cases. Local practice may also be relevant, with some courts routinely applying costs budgeting, which can carry tactical implications.
The reality is that choice is more constrained than it once was. The Business and Property Courts have led to greater specialisation, and with it a greater likelihood of transfer for multi-day or complex cases. The question is not simply where a claim can be issued, but where it is likely to be heard and determined.
A structured approach is required. Consider the size and nature of the estate, the issues in dispute, and the expertise required to determine them. Spousal claims of substance may warrant issue in the Family Division. Technically complex estate disputes may belong in Chancery. The majority of claims, however, will properly begin in the County Court, with an acceptance that transfer to a specialist centre may follow.
For assistance in this area of law, contact clerks@anvilchambers.co.uk