If you are an executor or trustee who is frustrated by a claimant who is dragging their feet, then you may wish to apply for a ‘put up or shut up’ order.Â
A ‘put up or shut up’ order imposes a time limit on someone who has threatened legal action against an estate but has thus far failed to advance their case. It means the claimant must either get on and issue a claim, or lose the right to do so.
Executors and trustees can become frustrated when they have been notified of a potential claim against an estate they are administering, but that claim has never been particularised or pursued. This can leave them in a state of flux, wondering whether to press on with the administration of the estate, or to keep it on hold until they hear further. If they wait, it might be months, or even years, before the case is pursued. Or they may never hear anything at all. However, if they decide to disregard the unsubstantiated claim and conclude administering the estate, they risk being held personally liable if a claim is subsequently pursued.
One option in this situation is for the executor or trustee to apply for a ‘put up or shut up’ order. This type of order is more formally known among lawyers as a Cobden-Ramsay order.
However, before applying for this type of order it is important to ensure that there are no other obstacles preventing the claim being commenced in court.
In the case of Parsons & Anor v Reid & Anor [2022] EWHC 755 (Ch) the court was asked to rule on a beneficiary’s claim against the trustees of her father’s estate. The beneficiary had questioned the amounts paid to another beneficiary, alleging that the trustees had breached their duties. The trustees had therefore responded by applying for a ‘put up or shut up’ order to impose a time limit on the beneficiary, thereby forcing her to issue her claim at court or give up her claim.
The beneficiary, argued that the trustees should first disclose all documentation detailing how their calculations had been reached.
While the court accepted it had jurisdiction to impose such an order, the judge agreed that the claimant needed to have all available documents made available to her before she could be expected to commence court proceedings.
The case illustrates that while a ‘put up or shut up’ order can provide frustrated executors and trustees with a solution when faced with claimants who are dragging their feet, they must still ensure they have provided reasonable disclosure before applying for an order and should consider the following factors:
- Whether the intimated claim is insubstantial, remote or speculative;
- The merits of the intimated claim; and
- Whether the order will limit their liability.
If you are a frustrated executor and think a ‘put up or shut up’ order would help you, our team of recommended probate and trust lawyers will be delighted to provide you with a free consultation.
