Litigation friends: what are they and when are they needed?

What is a litigation friend?

A litigation friend is a person appointed to conduct legal proceedings on behalf of a child or protected party (a person who cannot conduct litigation themselves due to them not having the mental capacity to do so, more commonly referred to as ‘P’).

A parent, relative, guardian, or carer of the child or P may be appointed to act as litigation friend, provided that they can conduct the legal proceedings fairly and competently and do not have interests that are adverse to the child or P.

However, given the complexities associated with legal proceedings and the fact that the court will need to approve all settlements reached where a child or P is involved, it is often more appropriate to appoint a solicitor or other legal professional to act as a litigation friend.

Litigation friends for children

Using litigation friends for children in the context of Inheritance and Trusts Disputes is not uncommon. This is because disputes often occur between family members who are connected to the child/children whose interests also need to be protected. As such, the child/children will require legal representation independent of their parents or close relatives.

The most common types of cases in which litigation friends will be appointed are:

Will validity disputes

Suppose a child is a beneficiary of a will that is being disputed. In that case, they may need to be represented by a litigation friend to ensure that their interest is protected and if necessary, the claim is appropriately defended.

Alternatively, if, for some reason, there is cause to believe that the deceased’s will is not valid and because of the invalidity, the child is ‘losing out’ on their inheritance in some way (e.g., because they benefitted to a greater extent under an earlier will), a litigation friend should be appointed to engage in proceedings on behalf of the child.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

When an unmarried parent or guardian dies intestate (i.e., without a will), their entire estate will be inherited by their child or children, regardless of their age (though protected on trust until they reach 18 years of age). This can cause problems for the surviving parent who will not be provided for from the estate under the rules of intestacy.  This can often result in the surviving parent needing to engage in litigation against their child or children, in which case, a litigation friend would need to be appointed to act on behalf of the child.

On the other hand, if a parent or guardian has died and under the terms of their will, their estate is left to persons other than their child, it may be the case that their child needs to make a claim for financial provision from their late parent or guardian’s estate. Again, a litigation friend would be appointed to conduct the litigation on the child’s behalf.

Trust disputes

Family trusts are very common and they are often discretionary by nature, with the potential class of beneficiaries extending as far as minor children and sometimes, even unborn children.

If a trust becomes the subject of a dispute and as a result, the child’s entitlement is called into question, it is sensible to appoint a litigation friend to ensure that child’s interests are well represented.

Litigation friends for protected parties

In the context of P, a litigation friend will be required to act in respect of any Inheritance & Trusts Disputes (such as those mentioned above) that affect P.

In addition to inheritance and trust disputes, litigation friends will be appointed to issue or respond to applications and conduct litigation under the Court of Protection on P’s behalf. The type of litigation conducted on P’s behalf can include:

1. Living arrangements;
2. Care arrangements;
3. Medical treatments; and
4. Financial affairs.

Conclusion

Acting as a litigation friend is an onerous role and there are procedures to following order to formally appoint a litigation friend. As such, it is advisable to seek legal independent advice.

The crux of a litigation friend’s duty is to ensure that they always act in the child’s or P’s best interests and they should not allow their personal views or interests to affect their decision-making.