Contentious probate and legal indemnity risks
Kate Thorp, manager of executor and inheritance protection at Dual Asset Underwriting talks about the complex nature of estate administration…
What are the main risks that exist when administering an estate?
I would say it is someone coming out of the woodwork and contesting the Will (if there is a Will) and/or making a claim for financial provision. Proprietary estoppel claims seem to be on the increase as well. These claims can be notoriously difficult to defend from our experience. Also, with modern society, it is more common that foreign nationals are the beneficiaries of an estate. Not only can they sometimes be difficult to trace, depending on their country of residence, but even when they are traced, establishing they are the correct person, can be difficult. Identity documents cannot always be relied upon, which presents difficulties for the personal representative, as they may be paying the wrong person. Fraud is very much on everyone’s mind in the legal profession at the moment with the recent Dreamvar case, so we are seeing an increase in these types of cases.
Do you deal with the public who are administrating an estate?
Individuals are often appointed as the administrator or executor. It’s not always a professional who is appointed. They should still consider obtaining legal advice though in my view. At DUAL Asset, we can only deal with cases where a professional is involved in administering the estate. We need to know that a full disclosure is being made to us as part of the insurance proposal and the person concerned is receiving the correct legal advice.
Is comprehensive insurance taken out on all estates?
DUAL Asset conceived this type of policy, taking the “all risks” title indemnity policy as the inspiration. Not all estates take out this cover, even though it is relatively low cost, especially when you consider what legal costs could amount to in dealing with a claim, whether there is a basis to that claim or not. The legal bill will be in the thousands after just a couple of bits of correspondence. I believe solicitors should at least be telling their client about this comprehensive product and giving their client the option to take the cover, or not. If they do not tell their client and there is a claim, their client may say the solicitor has been negligent in not disclosing to them the availability of insurance, especially if the claim cannot be recoverable against the solicitors PI insurer, leaving the client on their own to pay the claim or try and recover from the beneficiaries.
What is your most expensive claim?
It was an estate where we had claims from two individuals six months after the policy was issued. The claims were proprietary estoppel and undue influence by the deceased’s family in “forcing” the deceased to change their Will to exclude the claimants. We ended up settling at mediation and the amount paid out was around £280,000 with legal costs. Not bad for a £800 insurance policy! The insurance allowed the deceased’s family to keep the family home.
What can’t you insure?
We don’t like to decline risks. If we do, then they are usually “obvious” declines, such as the deceased’s child has been traced, but is not replying to correspondence and we are asked to provide missing beneficiary cover. We always try and give clients a couple of options for contentious risks as well, where someone has come out of the woodwork and has made “noises” that they intend to challenge the deceased’s will, using an excess and different premium options. This helps the client balance the cost of the insurance.