The Family Procedure Rules 2010

CHAPTER 3 APPLICATION FOR ALTERATION OF MAINTENANCE AGREEMENT AFTER DEATH OF ONE PARTY

Scope of this Chapter

8.6.  The rules in this Chapter apply to an application under section 36 of the 1973 Act(1) or paragraph 73 of Schedule 5 to the 2004 Act to alter a maintenance agreement after the death of one of the parties.

Where to start proceedings

8.7.—(1) The application may be made in the High Court or a county court.

(2) Where the application is made in a county court it must be made in the divorce county court or civil partnership proceedings county court for the district in which—

(a) the deceased resided at the time of death; or

(b) if the deceased did not reside in England and Wales at the time of death—

(i) the respondent or one of the respondents resides or carries on business; or

(ii) where the respondent is the personal representative of the deceased, the deceased’s estate is situated; or

(c) if neither (a) nor (b) applies—

(i) the applicant resides or carries on business; or

(ii) where the applicant is the personal representative of the deceased, the deceased’s estate is situated.

Who the parties are

8.8.—(1) Where the applicant is—

(a) the surviving party to the agreement, the personal representative of the deceased must be a respondent;

(b) the personal representative of the deceased, the surviving party to the agreement must be a respondent.

(2) The court may at any time direct that—

(a) any person be made a party to proceedings; or

(b) a party be removed.

Representative parties

8.9.—(1) The court may, before or after the application has been filed at court, make an order appointing a person to represent any other person or persons in the application where the person or persons to be represented—

(a) are unborn;

(b) cannot be found;

(c) cannot easily be ascertained; or

(d) are a class of persons who have the same interest in an application and—

(i) one or more members of that class are within sub-paragraphs(a), (b) or (c); or

(ii) to appoint a representative would further the overriding objective.

(2) An application for an order under paragraph (1) may be made by—

(a) any person who seeks to be appointed under the order; or

(b) any party to the application.

(3) An application for an order under paragraph (1) must be served on—

(a) all parties to the application to alter the maintenance agreement, if that application has been filed at court;

(b) the person sought to be appointed, if that person is not the applicant or a party to the application; and

(c) any other person as directed by the court.

(4) The court’s approval is required to settle proceedings in which a party is acting as a representative.

(5) The court may approve a settlement where it is satisfied that the settlement is for the benefit of all the represented persons.

(6) Unless the court directs otherwise, any order made on an application in which a party is acting as a representative—

(a) is binding on all persons represented in the proceedings; and

(b) may only be enforced by or against a person who is not a party with the permission of the court.

(7) An application may be brought by or against trustees, executors or administrators without adding as parties any persons who have a beneficial interest in the trust or estate and any order made on the application is binding on the beneficiaries unless the court orders otherwise.

Acknowledgment of service

8.10.—(1) A respondent who is a personal representative of the deceased must file with the acknowledgment of service a statement setting out—

(a) full particulars of the value of the deceased’s estate for probate after providing for the discharge of the funeral, testamentary and administration expenses, debts and liabilities (including inheritance tax and interest); and

(b) the people (including names, addresses and details of any persons under disability) or classes of people beneficially interested in the estate and the value of their interests so far as ascertained.

(2) The respondent must file the acknowledgment of service and any statement required under this rule within 28 days beginning with the date on which the application is served.

Hearings may be in private

8.11.  The court may decide to hear any application to which this Chapter applies in private.

(1)

Section 36 was amended by section 26(1) of the Inheritance (Provision for Family and Dependants) Act 1975 (c.63).