divider

Archive


rolling dice and weighing up the risks of contesting a will

CONTESTING A WILL – IS A THROW OF THE LEGAL DICE?

/ 0 Comments

WILL CONTEST CLAIMS – THE DANGERS OF A TRIAL

We have reported on the dangers of a trial in a Will contest claim in relation to claims for financial provision under section under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

Our blog on the subject appears at:
https://www.willclaim.com/how-to-contest-a-will-the-dangers-of-a-trial-in-an-adult-childs-claim-under-the-inheritance-provision-for-family-and-dependants-act-1975/

WILL CONTEST CLAIMS – WHY IS A TRIAL DANGEROUS?

As we previously mentioned, there is no certainty in any civil litigation. If you take your case to a trial, you are handing the keys to your claim to a Judge who forms an impression (good or bad) in an artificial environment (the court room) and who then makes a decision based on what he saw and listened to on the day of the trial. He wasn’t present when the actions which led to your Will contest claim or Will dispute case occurred. He wasn’t a fly on the wall at the time.

This was recently highlighted in the High Court when the cleaner of an elderly “rich” gentleman, won a fight over the legal validity of his Will. The lady in question was called Leonora Da Costa. The decision was widely reported (in The Times and Daily Mail):

https://www.thetimes.co.uk/article/cleaner-wins-ruling-in-fight-for-share-of-boss-s-500-000-estate-rzl3tqzxp
https://www.dailymail.co.uk/news/article-7077307/Cleaner-wins-battle-500-000-estate-man-cared-judge-overturns-will.html

On the face of it and absent knowledge of the entirety of the facts, one might have been a little suspicious of Mrs Da Costa. The gentleman making the Will had a child (a daughter) who received a relatively modest bequest in his Will compared to Mrs Da Costa, who stood to inherit the bulk of his estate. Ordinarily one might have assumed he would have favoured her with his estate. Further, during the course of working for the deceased, he paid £45,000 towards Mrs Da Costa’s daughter’s school fees. That on its own might have set the alarm bells ringing. Nevertheless, the Judge found in favour of Mrs Da Costa. She (according to the Daily Mail) exuded “warmth and kindness” and she seemed to take to the deceased, describing in The Times that their relationship became like one of “father and daughter” (although apparently not like the deceased’s relationship with his own daughter!). She successfully challenged the Will the deceased made shortly before his death which favoured his daughter (albeit after the bulk of his estate had been transferred to his nephew who was a Barrister), so that the earlier Will, under which most of his fortune was left to his cleaner became his last valid Will and Testament.

Mrs Da Costa’s determination was quite extraordinary, given as was reported in the Daily Mail, had she lost she would have “faced financial ruin”. She was a property owner with a three-bedroom house in Northwood Hills, Middlesex. Losing the case would probably have resulted in a costs order against her and her house would have been used to fund this.

I am not clear of course about the financial arrangements and it is possible she was able to obtain sufficient insurance to cover her potential losses should she have lost, but doubtful and the case isn’t reported on in that way.

This highlights again the potential pitfalls of this type of litigation but also the strength of feeling it arouses. A no win no fee arrangement with us will naturally drive your case towards a settlement but then this is in your interests in any event. A settlement is certainty and the retention of control. If you ask a Judge to decide, you are voluntarily losing control. Being determined is all well and good, but not if the downside can be so catastrophic.

CAN’T I PROTECT MYSELF AGAINST THE RISK OF LOSING A WILL CONTEST CLAIM BY TAKING OUT INSURANCE?

The simple answer is “yes” but it is not a given. Your Solicitor won’t be in charge of getting you this “protection”; it will be the insurance “underwriter”. Our experience is as follows:
1. The policies are available but expensive although to be clear, the arrangement will mirror the no win no fee arrangement with your Solicitor, so that nothing is payable unless you win;
2. The potential cost of the premium might (ironically) discourage settlement – in our experience premiums have ranged from £20,000 to almost £40,000 and given they must be deducted from any sum you receive (and will not form part of a claim for costs) it is easy to see how this could prevent a settlement, where for instance, the sum on offer was little more than the premium, if not less;
3. There seems to be a limit to amount of cover on offer – in other words, the policy is unlikely to cover all of your potential losses, should you be ordered to pay the other side’s costs, on losing a Will contest claim.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

Know the golden rule in relation to testamentary capacity to avoid your will being challenged

CONTESTING A WILL – HOW PROMISES CAN OVERRIDE WILLS

/ 0 Comments

WILL CONTEST CLAIMS – HOW CAN A PROMISE OVERRIDE THE WISHES OF THE DECEASED BY HIS WILL?

A promise by the deceased to leave his or her land to someone other than the person who is named to receive it by his/her Will, can override that by “giving” that person ownership of the land without an actual transfer having taken place before death. The Will only takes effect on death and so if the “theoretical” transfer occurred before death by means of the aforementioned promise, the property is no longer available to be passed under the terms of the Will. It is if you like a lifetime gift, but by way of type of agreement which the courts will step in to enforce.

This type of lifetime gift can only be “formalised” by a Court (or otherwise by the agreement of those who might have benefitted from the land). It is comes about because of a legal concept called “Proprietary Estoppel”.

WILL CONTEST CLAIMS – WHAT IS PROPRIETARY ESTOPPEL?

The Wikipedia definition assists see https://en.wikipedia.org/wiki/Proprietary_estoppel

However in outline, Proprietary estoppel arises in relation to property if,

• someone is given a clear assurance that they will acquire a right over property, • they reasonably rely on the assurance, and,

• they act substantially to their detriment on the strength of the assurance

• it would be unconscionable to go back on the assurance

If these elements of assurance, reliance and detriment, and unconscionability are present, one remedy will be that the property will be transferred to the claimant, although to be clear, the actual remedy will be the minimum to do justice, so it may be the case the successful Claimant will receive something less than a full transfer (perhaps a life time interest).

WILL CONTEST CLAIMS – HOW EASY IS THIS TO PROVE?

This type of claim will typically arise in disputes over the ownership of a farm. There are good reasons for this. Firstly, since farming is more often than not a family business, the actual working relationships between members of the same family are usually of a casual type. Secondly, farms and farm land are disproportionately valuable (as compared to the profitability and turnover of the business) because of their unique tax advantages and the present subsidy scheme.

There is of course an inherent problem in proving these cases, since the casual nature of the commercial relationship between (usually) members of the same family, inevitably means there will be little paperwork and more often than not, personal recollections are key. This will often mean the evidence is quite weak, or, more likely than not, is contradicted by those seeking to contest the claim. This vastly increases risk and one might easily justify only a 50:50 chance of success in consequence. Nevertheless, the value of the actual property in dispute means that a fair proportion do end up in a trial. For instance in 2018 a relatively large number of these claims ended up in the High Court – 12 cases. However (and not surprisingly given my analysis above) out of the 12 cases, only 3 were successful!

I won’t dwell on the technical reasons for this, but suffice to say, there are considerable evidential hurdles to overcome in cases of this nature and a wide discretion on the part of a Judge, to accept or dismiss evidence which is provided at trial. This highlights again the potential pitfalls of this type of litigation. A no win no fee arrangement with us will naturally drive your case towards a settlement but then this is in your interests in any event. A settlement is certainty and the retention of control. If you ask a Judge to decide, you are voluntarily losing control. Clearly though if you settle, your success is going to be moderated by the compromise you strike with the other party.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

making a gift on your deathbed is not as straightforward as it might seem

HOW TO CONTEST A WILL – THE DANGERS OF A TRIAL IN AN ADULT CHILD’S CLAIM UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

/ 0 Comments

WILL DISPUTE – THE DANGERS OF A TRIAL

We have previously highlighted the dangers of a trial in a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

This was recently brought into stark relief in Wellesley v Wellesley & Ors (2019) EWHC 11 (Ch). Jamie Randall of Serle Court Chambers provides an invaluable commentary at:

http://www.serlecourt.co.uk/news/article/jamie-randall-discusses-the-recent-judgment-handed-down-in-wellesley-v-wellesley-ors-2019-ewhc-11-ch
Suffice to say, the adult child (“Tara”) in Wellesley had her claim dismissed.

WILL DISPUTE – WHY IS A TRIAL DANGEROUS?

Unfortunately, there is no certainty in any civil litigation. For example, whilst you might provide what you consider to be compelling evidence of your financial needs in relation to a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975, it is highly likely your opponent will also provide (what they consider to be) equally compelling evidence which contradicts your own. A Judge has to decide. Toss a coin – he may not like you (although this will never be said). He has such a wide discretion under the Inheritance Act that frankly (to an extent) anything can happen at a trial. Lawyers refer to this as “litigation risk” and apply various percentages to it when advising. If you lose, they can simply say “well we told you there was a 35% risk of failure” and that your case unfortunately fell within it. None of this helps you. A no win no fee arrangement with us will naturally drive your case towards a settlement but then this is in your interests in any event. A settlement is certainty and the retention of control. If you ask a Judge to decide, you are voluntarily losing control.

WILL DISPUTE – WHAT HAPPENED IN WELLESLEY?

This, as mentioned, was a claim by an adult child under the Inheritance (Provision for Family and Dependants) Act 1975. The Claimant was the adult daughter of the seventh Earl Cowley, who left an estate valued at £1,318,403.50. She was due to receive £20,000 under the terms of his last Will which she considered was inadequate financial provision for her. There appear to have been several factual findings against her which particularly influenced the overall outcome. There had been a long estrangement which the Supreme Court in Ilott v Mitson 15 March 2017 (see https://www.supremecourt.uk/cases/uksc-2015-0203.html ) found might justify the complete rejection of the claim where the Claimant was responsible for it, which is what was found by Deputy Master Linwood here:

“….my value judgment is that on the facts as known to me today Tara’s conduct in terms of her responsibility for the extremely long estrangement for almost all of her adult life, with no reconciliation in prospect, outweighs all of the factors in her favour. I therefore conclude that the Will did not fail to make reasonable financial provision for Tara beyond her legacy of £20,000”

Other significant factual findings against her included:
1. Tara (the Claimant) could and did live within her means (in other words she didn’t actually have a financial need)
2. There was no evidence that her deceased father owed her any obligation (to support her financially as an adult)
3. Whilst Tara had ADHD there was expert evidence to the effect that this did not prevent her for working with the right support
4. Whilst Tara had made a claim partially based on her support for her disabled son, he didn’t actually live with her and there was no evidence that she had been financially responsible for him for several years.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator


HOW TO CONTEST A WILL – THE BENEFIT OF HAVING A NO WIN NO FEE ARRANGEMENT

/ 0 Comments

WILL DISPUTE – OUR NO WIN NO FEE ARRANGEMENTS

We have explained in our previous blog that we are prepared to work under a no win no fee arrangement in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

One page within our website (which also contains a helpful video) provides more detail at https://www.willclaim.com/no-win-no-fee/.

WILL DISPUTE – WHAT CAN HAPPEN IF YOU INSTRUCT SOLICITORS WHO DON’T OPERATE UNDER A NO WIN NO FEE ARRANGEMENT?

In T v V 2019 EWHX 214 (Fam) a claim was made for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975

(https://www.legislation.gov.uk/ukpga/1975/63)

by virtue of section 1(1)(e) of the Act – in other words this was not a claim by a spouse or child of the deceased, but rather on the basis that “immediately before the death of the deceased” the person concerned was “being maintained, either wholly or partly, by the deceased”. Their relationship had apparently involved significant periods of cohabitation and of financial support.

It is possible to bring an application for an interim payment by virtue of section 5 of the Act (https://www.legislation.gov.uk/ukpga/1975/63/section/5)

This is what the Claimant applied for here, but not because of her own urgent need, but rather the urgent need of her Solicitors – the application was made on the basis of her need to pay her own legal fees. Plainly, this would not and cannot occur where one is working for a client under a no win no fee arrangement. Surprisingly perhaps, it was accepted by the Defendant’s Solicitors that section 5 of the Act could be used to cover legal fees. However, on balance such an application for this purpose was very unattractive and it failed, possibly blighting the entire claim (although to be clear, this was not the final hearing, that having been listed for another time).

Mrs Justice Lieven who heard the application identified that there were two requirements under section 5 which she needed to consider. Firstly, there was the question of whether the was in immediate financial need. Secondly that the Claimant’s claim had some prospects of success.

She found the Claimant was not in immediate financial need, suggesting then that whilst lawyers might consider the payment of their costs is a justifiable need, the judiciary certainly do not! She was also concerned there was no obvious prospect of the interim payment being repaid if the Claimant lost.

Whilst it is not clear, how this failure is likely to have affected the overall claim, it cannot have helped to achieve a solution. What is clear though is that the absence of a no win no fee arrangement in this will contest claim, worked against the interests of the Claimant. Whilst not stated, there was, one suspects, a difficulty with the case being run to a trial, absent the payment of some of the Claimant’s lawyers costs. Once this had been identified by the Defendant’s legal team (and it must surely have been made obvious by dint of the application for an interim payment), the Claimant was always likely to be on the “back foot”. Of course, in contrast, one might also argue a no win no fee arrangement drives the party having the benefit of it to a settlement – however, one can clearly see the risk inherent in court action for those who cannot embrace a settlement on the basis of this claim. With a settlement control is maintained. Once control is ceded to a Judge, there is a considerable risk of failure.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

Challenging a will on grounds of mental capacity will inevitably mean considering the golden rule

HOW TO CONTEST A WILL – DOES HAVING A MIRROR WILL CREATE A BINDING OBLIGATION

/ 0 Comments

DISPUTING A WILL – IF A COUPLE HAVE MIRROR WILLS DOESN’T THAT MEAN THEY CANNOT BE CHANGED?

Firstly, what is a mirror Will? Put simply it arises when a couple, usually a married couple, have prepared Wills (usually at the same time) where each separate Will is a reflection of the other. A typical example might be a Will prepared by the wife, leaving the entirety of her estate to her husband but if he died before her, then to their children; with the husband’s Will leaving the entirety of his estate to his wife, but if she died before, then to their children. It is often suggested that this means the Will cannot be changed.

Unfortunately, this is not correct. Their Wills can be revoked at any time and importantly, this can and does (it seems) sometimes happen after one of them dies. It is plain from case law that a disappointed beneficiary, who should have benefited from the estate of the survivor of two individuals who had prepared mirror Wills (usually one or more of their children), can only recover his or her rightful share, if there is evidence of an agreement between the two mirror Will makers not to revoke. The oral evidence from the disappointed beneficiary is unlikely to be enough simply because his/her evidence is going to be largely discounted because it is “self-serving”. Independent evidence is going to be required which is usually a form of words in the mirror Wills themselves along with the lines that they have each been executed to reflect the other and with the agreement that they shouldn’t be revoked or changed. A case in point is Walters v Olins (see https://swarb.co.uk/walters-v-olins-ca-4-jul-2008/).

DISPUTING A WILL – HOW DO MIRROR WILLS CREATE AN ENFORCEABLE AGREEMENT NOT TO REVOKE OR CHANGE A WILL?

As mentioned, there must be evidence of an agreement not to revoke or change the Will. This doesn’t prevent it from being changed or revoked as the nature of a Will in English and Welsh law means that it can be changed or revoked at any time. However, it provides the disappointed beneficiary with the ability to enforce his or her right to a share of the estate which was promised to them.

In a Will contest or Will dispute claim then, it is possible for the disappointed beneficiary to enforce the agreement within mirror Wills whereby he or she should have inherited. The Courts regard the survivor of two individuals who had agreed not to change their Wills, as the Trustee over a Trust containing the property which was supposed to be subject to the agreement.
This was confirmed by Dixon J in Birmingham v Renfrew (see https://swarb.co.uk/birmingham-v-renfrew-11-jun-1937/) and the quote below:

‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . .”

In other words then the disappointed beneficiary can sue the estate of the last survivor of two individuals who had agreed not to revoke their Wills (but had done so) with a view to enforcing the terms of the trust which sheltered the property he/she should have benefitted from.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

preaction disclosure of documents is a vital part of a will dispute

HOW TO CONTEST A WILL – WORKING UNDER A NO WIN NO FEE ARRANGEMENT

/ 0 Comments

DISPUTING A WILL – WORKING UNDER A NO WIN NO FEE ARRANGEMENT, WHAT DOES IT MEAN?

We have already described that we are prepared to work under a no win no fee arrangement to dispute or claim against the legal validity of a Will (but also in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

Our page (which also contains a helpful video) sets this out in detail at https://www.willclaim.com/no-win-no-fee/.

In fact and to be clear, we carry out almost the entirety of our work in this field (in relation to will contest and will dispute claims) under no win no fee arrangements.

But what is a no win no fee arrangement and how does it work in relation to Will dispute and Will contest claims? It is simply an agreement to carry out this legal work on the basis that we will not charge a penny unless we win the case. A “win” then triggers the right to charge our fees.

A “win” is not just an outright win following a trial where the losing Defendant is ordered to pay our fees, it also arises if there has been an agreement before the trial (and usually in fact before there are any court proceedings at all!) to compromise the claim in some way.

DISPUTING A WILL – WHO THEN PAYS ONCE YOU WIN?

If the case is won at trial then the loser will be ordered to pay the winner’s costs. However, given at least 99% of the claims we will deal with under a no win no fee arrangement do not go to a trial but are resolved by us well before, then put simply the terms of the settlement agreement determine who pays. As we cannot resolve (or “settle”) a case without the consent of our client, then he or she must agree to this question as well. We cannot simply decide this off our own back.

What actually happens is that in 99% of cases there is no trial as mentioned. Instead an agreement or settlement is reached and our costs are either paid directly as part of that agreement or (where it has been agreed that a lump sum of say £100,000 is paid) out of the settlement figure.

It is never the case that the amount we will accept for our costs exceeds the settlement sum since our client would never agree to this and we would never allow it to happen. If necessary our costs can be compromised to facilitate an appropriate agreement.

DISPUTING A WILL – WHAT HAPPENS IF THE CASE IS “LOST”?

We have already explained that over 99% of our cases do not go to trial and that in fact we do not issue court proceedings at all for the vast bulk of them. Whilst we will often take on a
will contest or will dispute claim when we don’t truly know we will be able to win it, we are usually able to determine its viability within a very short space of time. For instance, where a claim is being made that the deceased didn’t have legal testamentary capacity in a will dispute claim or will contest claim, the question is usually resolved very quickly by the deceased’s medical records. If there is no record of an issue with capacity in the deceased’s medical records at the time the Will was made, then the claim is quite simply dropped. There will be nothing to pay at that point as we won’t have “won” it.

Whilst it is possible to obtain ATE (“after the event”) insurance to protect against the risk of losing at a trial (whereby the loser pays the winners costs), it is not advisable to consider that a trial on a given day before a Judge who will otherwise have never met you before and who could be swayed by matters that are not within your control (such as the Defendants witnesses), is going to offer you the best solution. It will not offer you the best solution except in the most exceptional of circumstances and our advice and professional care will almost certainly be guiding you towards a better solution, which is usually a settlement agreement in some form.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

wax seal on a document

HOW TO CONTEST A WILL – BRINGING A CLAIM OUT OF TIME

/ 0 Comments

DISPUTING A WILL – IS IT POSSIBLE TO BRING A CLAIM OUT OF TIME?
Firstly is there a time limit? The answer is no in relation to a claim against the legal validity of a Will (eg. a Will contest claim that the Will isn’t valid because it wasn’t signed by the person making the Will in front of two witnesses who also signed, because he or she didn’t understand what was going on or because he or she was forced into it).
The answer is yes where a claim is being made for financial provision by a near relative, spouse or dependent person. This sort of Will dispute is a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975. The person bringing the Will claim is not challenging the legal validity of the Will; put simply he or she is saying its contents are unreasonable given his/her financial and health issues. This type of Will dispute claim does have a time limit which is six months from the date of the grant of probate.

IS IT POSSIBLE TO SEEK AN EXTENSION OF THE SIX MONTH TIME LIMIT IN RELATION TO CLAIMS FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975 (“the Act”)
The simple answer is yes! An application can be brought under section 4 of the Act (see https://www.legislation.gov.uk/ukpga/1975/63/section/4).

The court has a discretion to allow a financial provision Will contest claim to be brought after the six month period following the grant of probate has expired.

WHAT IS A GRANT OF PROBATE AND WHY IS IT NECESSARY?
A Grant of Probate is the licence to the Will Executor (the “Will Executor” is the person nominated by the person making the Will to take responsibility for the administration of her/her estate) to start to call in the estate assets and to distribute them in accordance with the Will instructions. The government has to have some policing role to check that the Will is a genuine document and because it wants in some circumstances to claim tax from the estate (if it is big enough).

IN WHAT CIRCUMSTANCES WILL THE EXTENSION OF TIME BE GIVEN?
In Will contest claims to date, it has generally been ruled by the Court that an extension would only be granted within at worst a few years after the expiry of the six month time limit. There are practical reasons for doing so. For instance, once the estate has been distributed it is likely to prove impossible to recover sums that might be used to pay for the successful financial provision claim. However a key element of any successful application for further time will always be evidence that absent the issue of one bringing the claim out of time, it would have been successful. This essentially filters out all but the most compelling cases.

In an interesting recent development a Court has allowed a claim for financial provision to proceed no less than over 25 years out of time!

The case in question is called Mrs Shantabai Bhusate v Dr Mangala Patel and others (2019) EWHC 470 (Ch) https://www.lawgazette.co.uk/download?ac=33428

The Claimant was given permission to proceed on the following grounds:
1. The merits of her claim under the Inheritance Act were found to be very strong;
2. The delay in bringing the claim could be explained and in particular was caused by matters which were outside of her control (in other words it wasn’t her fault);
3. There was evidence that the Defendants to her claim were at fault because they obstructed the sale of a property which formed part of the estate (they now stood to benefit for their obstructive behaviour by denying her the prospect of bringing her claim out of time);
4. If the application weren’t granted the Claimant would have had no remedy at all and she ran the risk of becoming homeless.

Whilst such a result in a Will contest claim might encourage certain historical applicants, it was I suspect something of a one off. It seems highly unlikely that most claims of a similar age will succeed.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

A barrister's wig

HOW TO CONTEST A WILL – DEFENDING A SPURIOUS CLAIM (HOW TO CHEAPLY REMOVE A CAVEAT)

/ 0 Comments

WHAT HAPPENS IF SOMEONE MAKES A COMPLETELY UNMERITORIOUS CLAIM AGAINST THE LEGAL VALIDITY OF A WILL
If such a claim is made (that a Will is invalid) and either no grounds to support such a claim are provided or those that are have no foundation in law or are entirely without merit, then typically a Caveat might have been entered to prevent the lawful administration of the estate whilst the claim is concluded. We have come across a wide range of such claims where it appears impossible to remove the Caveat without recourse to expensive court proceedings in the High Court.

One has to say that it is always possible to apply for an interim Grant so that the estate is administered but not actually distributed which is sometimes necessary to “protect” vulnerable estate assets (such as a house) which might otherwise considerably deteriorate over time.

WHAT SORT OF CLAIMS ARE MADE WHICH APPEAR TO HAVE NO MERIT
It is often assumed by disappointed beneficiaries that just because they are “family” or “blood relatives” they have an automatic right to inherit. This is not the case for English and Welsh estates as in this jurisdiction, there is almost complete testamentary freedom, jealously guarded by the Courts in England and Wales.
Another related claim is that the Will is unfair because (for instance) children of the deceased didn’t receive equal shares. Again, freedom of testamentary disposition means this is no a ground which can found a claim in law.

Finally, it might simply be a claim (for instance) that the Will is invalid because the Testator (the legal term of the person who actually makes the Will) didn’t have legal testamentary capacity, but where the deceased’s medical records reveal no such issue or the Solicitors involved in the formation of the Will took steps to have the deceased assessed for his capacity, prior to the Will being completed, a test which he or she passed.

IF THE CAVEAT IS IN PLACE THE ADMINISTRATION OF THE ESTATE IS PLACED ON HOLD
The existence of a Caveat stops the legal distribution of the estate and therefore holds up its lawful administration. It is an extremely powerful device and its use can be abused in Will dispute, Will contest cases and in Will Claims in general. In fact, we receive requests to use the Caveat in this way notwithstanding there is little or no evidence to sustain such a claim, several times a month.
Surprisingly then, it is much rarer to receive a request for assistance to actually remove a Caveat where there is no justifiable claim. There are though little used devices which can be deployed to remove them reasonably “cheaply” and without the need for full-blown legal proceedings (commonly called CPR 57 claims) in the High Court Chancery Division. Those can cost tens of thousands of pounds.

Firstly (and this is in fact well-known), the Caveat can be “warned”, which is a process wherebys the person who entered the Caveat (called the “Caveator”) is asked to confirm very briefly the nature of their complaint against the legal validity of the Will. If the Caveator doesn’t enter an “Appearance” explaining in very brief terms, the nature of their complaint, then a sort application can be made to the Probate Registry for the Caveat to be removed.

If the Appearance is entered, then as will quickly be seen, only the very briefest details of the nature of the Will dispute contest are required and no evidence (eg. that the testator lacked legal testamentary capacity and didn’t know and approve the contents of his/her Will). The Caveat then becomes permanent which means in practice that the Caveator doesn’t then have to renew it every six months and pay the fee to do so (which is currently £20).

Once permanent, it can still be removed with agreement and without an expensive High Court Chancery Division claim. However, even absent agreement, if the Caveator still takes no steps to progress his or her claim and thereby appears to be relying on the delay in the estate administration caused by entry of the Caveat to bring about an agreement, it is still possible to force him to “put up or shut up”. A Summons for Directions can be issued in the Probate Registry to obtain an Order that unless he or she issues a High Court Chancery Division claim by such and such a date, the Caveat is struck out.

As I say, this is particularly effective is disposing of the most unmeritorious claims in Will dispute/will contest cases. It is not a good idea where the claim has some chance of succeeding!!
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

piles of money to illustrate what is reasonable financial provision after teh case of Wooldridge v Wooldridge

HOW TO CONTEST A WILL – DOES A RICH BROTHER DESERVE A SHARE OF WILL?

/ 0 Comments

HOW TO CONTEST A WILL – DOES A RICH BROTHER DESERVE A SHARE OF WILL?

As reported in The Times (https://www.thetimes.co.uk/article/our-rich-brother-doesnt-deserve-equal-share-of-will-say-sisters-dlrhwl9vf) two sisters considered their rich brother didn’t deserve a share of their late mother’s estate which was worth 1.5m. Their mother had split the estate equally but according to The Times article he should have been entitled to less than the third he had been left as “he is richer than they are”.

The Will in question was made in 2013. However their mother then went on to live another three years, dying in 2016 aged 90. It had been drawn up within months of the death of her husband and nine days after a fall which had left her “vulnerable”.

The challenge appears to have been two-fold (although the article may not have reported on the case in its entirety – so a “health warning” is applied to this particular will contest claim). Firstly a lack of knowledge and approval was alleged (akin to claiming a lack of mental capacity). It was also claimed the Will wasn’t properly witnessed in accordance with section 9 of the Wills Act 1837 (whereby the person making the Will must have her signature witnessed by two witnesses who also sign it – see http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9).

There had been a previous Will made in 2012 whereby the brother had been left 20% of his mother’s estate and the sisters, 40% each. So far as the brother was concerned then, this was an argument over approximately £200,000. Whilst a significant sum to most ordinary people, it is not inconceivable that the costs (to both sides) of running such a defence to the will contest/will dispute claim will exceed £200,000 and by a considerable amount. The first question mark then in my mind is that when considering risk v award, the trial was justified. I would say not. However, what we don’t know is what has gone on in the background – whether, for instance, ADR (“alternative dispute resolution”) was attempted but failed or was even refused. The problem here is that there was really not very much difference between the parties positions so bizarrely that in itself might have worked against sensible settlement discussions.

The impression from the article is a claim was being made that the deceased, “weakened” by the death of her husband and perhaps her declining health was taken advantage of by the brother. Again, though this is an impression only – we don’t know the full facts. However, the Barrister representing the sisters is said to have alleged that the brother “took control” of their mother’s finances and claimed (to the brother and presumably during cross-examination or summing up) that “You wanted your sisters out of it”. The obvious weakness in that position is firstly, if such control was in fact correct, why weren’t the sisters disinherited entirely rather than their share diminished to provide for each of the children equally (an equitable position on its facts anyway since of course no one can account for the future and financial falls can occur to anyone). Secondly, if as it appears, capacity for the most part was retained by the deceased in relation to her Will, then how, if the Will change

was due to pressure only, was it possible for the brother to maintain this for three years until her death. In other words she had plenty of time to realise her mistake and rectify this.
It will be interesting to find out the result of this will dispute and will contest claim and whether the Will is revoked.

As a final point, which we have mentioned before in the context of Will dispute and Will contest claims, there is no legal basis for a claim that a Will is unfair as a factor against its legal validity. In any event, what is and what is not unfair in Will dispute claims, is a matter of perspective and subjectivity. This is not something a Judge could be expected to rule upon in a Will contest and will dispute claim.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

how long will it take to resolve a will dispute

HOW TO CONTEST A WILL – HOW THE ADULT CHILD CAN BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

/ 0 Comments

HOW TO CONTEST A WILL – HOW THE ADULT CHILD CAN BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

In my previous Blog on this topic, I described that there are limited grounds to dispute or contest the validity of a Will and how an adult child can do it by bringing a claim for financial provision from his or her parent’s estate, pursuant to section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see https://www.legislation.gov.uk/ukpga/1975/63)

I described the difficulties; an adult child seems to have to bring more to the table other than simply, “here I am, I am poor, therefore the estate must provide”. A moral claim justification has been held to apply, but that too has been watered down as there is no mention of any such requirement in the 1975 Inheritance Act. Nevertheless, it has been described as an element of a Will contest and Will dispute claim under the Inheritance Act 1975, so one cannot ignore it.

Given so, what does “moral claim” in Will dispute/Will contest claims under the Inheritance Act 1975 mean? It is difficult to be specific as each claim is completely different, but having discussed this with Barristers and from my own experience, I can say with reasonable certainty that it appears to involve:

• Broken promises by the deceased
• Conduct on the part of the deceased such as caring for the deceased for a considerable period and at considerable cost, but then finding oneself disinherited
• Conduct on the part of the deceased which might have led to the adult child finding himself (or herself) poor and in financial need (eg. abuse during childhood and/or a failure in parental control leading to health issues once the child became an adult)
• In other words some fault or action on the part of the parent which has helped caused his or her adult child to have some financial need

As already described, whilst useful, it is not absolutely necessary to bring forward a “moral claim” to prove your case for contesting the Will and/or disputing the Will under the 1975 Inheritance Act (as an adult child). Act”). For reference see Nahajec v Fowle [2017] Lexis Citation 270 (https://swarb.co.uk/nahajec-v-fowle-misc-18-jul-2017/) and Ball v Ball [2017] EWHC 1750 (https://swarb.co.uk/ball-and-others-v-ball-and-others-chd-2-aug-2017/).

The learned judges in Nahajec and Ball both make reference to Lord Hughes’s finding in Ilott v Mitson (https://www.supremecourt.uk/cases/uksc-2015-0203.html) (at [20]) that a “moral claim” is not a precondition of an award. As HHJ Matthews summarised the point (Ball v Ball), “need” is still not enough on its own and that there must be some further factor,
which may be a “moral claim” or some other circumstance. The ultimate question is whether it is reasonable for the applicant to be left without maintenance.

In Nahajec the adult child’s claim succeeded. The applicant was age 31, in straitened financial circumstances (working on zero hours’ contracts, with debts (£6600 – see para 94(c)), had an aspiration to train as a veterinary nurse and had no teenage or adult relationship with her father the decease save for a reconciliation during two years 8 years before. The lack of relationship was despite efforts by the applicant to make contact (see para 63 of the judgment). The estate with a net value of £265,710 was left to a friend of the deceased, the defendant, who also had money problems (see para 90). The award was £30,000. In addition to finding that the applicant’s desire to train as a nurse was a factor which made the lack of any provision unreasonable (at para 88), HHJ Saffmann found that so also was the fact that the applicant had sought a relationship (at para 86).

In Ball the net estate was £157,000 (see para 98). The deceased had 11 children and a grandson (see para 1). There were 3 claimants and so the difference between the estate being divided 12 ways (i.e. with the claimants included equally) or 9 ways (without the claimants) was only £4,361. The deceased, who was the mother, had excluded the claimants because they had reported their father to the police for sexual abuse (para 2). HHJ Matthews refused to characterise this decision as bad behaviour taking into account the standards of the time it was made (para 82). There was no significant discrepancy between the means of the claimants and the defendants (para 84) and an award could make little difference anyway (para 86). No award was made.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat..

Read More
separator

In Ball v Ball the court would not uphold a will dispute in which teh children had been abused by their father and the husband of the testatrix

HOW TO CONTEST A WILL – HOW HARD IS IT FOR AN ADULT CHILD TO BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

/ 0 Comments

HOW TO CONTEST A WILL – HOW HARD IS IT FOR AN ADULT CHILD TO BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

There are limited grounds to dispute or contest the validity of a Will. By far the most common is a claim by an adult child for financial provision from his or her parent’s estate, pursuant to section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see https://www.legislation.gov.uk/ukpga/1975/63)

If brief, in England and Wales, a parent is not obliged to leave his or her estate to their child – they can leave everything to a stranger if they see fit. This is called “freedom of testamentary disposition”. However to eliminate the difficulties this can cause (eg. where a parent dies leaving minor children disinherited) Parliament legislated to create an Act called, as mentioned, the Inheritance (Provision for Family and Dependants) Act 1975 which could enable a Court to make financial provision for, for instance, a needy child. A minor child falls within the category of so-called favoured applicants under the Act (along with wives or husbands!). A claim by an adult child is much more difficult to justify in Will claim, Will contest or Will dispute claims. Quite simply the law (Judges) seem to regard adult children as inherently independent and therefore capable of providing for themselves. Reluctantly it seems courts have come to the realisation that many are not and will never be capable of being completely independent. In this way then and in Will contest and Will dispute claims, adult children began to find they could succeed in such claims under the Inheritance 1975 Act.

The issue was aired in great detail in the UK Supreme Court in Ilott v Mitson (The Blue Cross and others)( https://www.supremecourt.uk/cases/uksc-2015-0203.html). The conclusion? Yes adult children can bring such a Will claim and/or contest a Will in this way, but the person who made the Will could provide sufficient justification for disinheriting his child to defeat such a claim where the child was not altogether blameless (for instance for an estrangement) or if the child couldn’t establish a “moral” justification to his/her claim ie something more than just a financial ground (the usual reason given is that “I am poor, in need, and therefore I must be entitled to a share of the estate). The Court said “no”, that on its own is not sufficient.

However a succession of cases both before and after Ilott above have stated in fact there is no moral requirement in the 1975 Inheritance Act in relation to Will dispute and Will contest claims. This is absolutely right. The grounds for any claim under the 1975 Inheritance Act must reflect the issues mentioned by section 3

(1). Under this section a Court considering such a claim, must consider a relatively limited menu of grounds justifying an application for financial assistance from a deceased parent’s estate. I have cut and pasted the relevant grounds below:

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

There no mention of moral claim anywhere. Quite obviously then, this helps creates considerable risk for each side to a Will contest and Will dispute claim, since the position seems so uncertain. It has helped to encourage these claims (by adult children). I consider this further in my next blog.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

5 things to know about testamentary capacity

HOW TO CONTEST A WILL – THE CAPACITY REQUIRED TO MAKE ONE

/ 0 Comments

HOW TO CONTEST A WILL – THE CAPACITY REQUIRED TO MAKE ONE

There are limited grounds to dispute or contest the validity of a Will. By far the most common (which is usually the easiest to prove), is that the person making the Will (called the “testator”) lacked sufficient mental capacity to do so.

Dispelling the myths
We are often told that a particular individual cannot have had sufficient mental capacity following a diagnosis of dementia or Alzheimer’s disease. This is not necessarily the case. In reality very little “mental capacity” is required to have sufficient capacity to make a valid Will. In relation to a Will dispute or Will contest claim where the Will is being challenged, it is simply a question of degree. For instance, how bad is the loss of memory? A diagnosis of mild dementia is unlikely to lead to a successful challenge against the legal validity of a Will, unless that is, there is a severe impact on decision-making.

The primary test of capacity in Will dispute and Will contest claims
Is there a primary test of capacity in Will dispute and Will contest claims? Yes there is. It is in a very old case called Banks v Goodfellow (https://swarb.co.uk/banks-v-goodfellow-qbd-1870/) where the primary legal test of capacity was stated by Cockburn CJ:

It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’

Whilst 1870 is a long time ago, this “test” still stands today!

The key elements of the capacity test in Will dispute and Will contest claims
So what are the key elements of the capacity test in Will dispute and Will contest claims?

1. That a testator shall understand the nature of the act and its effects

This ought to be straight-forward. The testator or the person making the Will must understand the purpose of the Will and what it will do; in other words that the Will governs what happens to their money and property after they die.

So far so good. But….

2. Shall understand the extent of the property of which he is disposing

This is one of the most difficult areas in Will dispute and Will contest claims where many of the challenges against the legal validity of a Will are made. The context is this. An aged individual making a Will close to death is often not in apparent control of their finances and often because their health issues (eyesight, hearing and/or mobility) make it impossible for them to do so. PLEASE NOTE I have been careful here not to mention a condition which might adversely affect their so-called mental capacity. So, where one is challenging the legal validity of a Will, it is immediately possible to spot a difficulty where there is physical incapacity but not necessarily mental incapacity in relation to a Will dispute claim. The issue is that the individual with a physical incapacity and who has handed over the control of his or her finances to someone else because of their physical incapacity, might not then have an immediate and comprehensive understanding of the extent of his or her property even though mental capacity is retained. With this in mind, Judges appear to have watered down the requirement to actually understand the full extent of his or her property:

The requirement to know the extent of one’s estate does not mean knowing its value down to the last penny. Furthermore, evidence is not necessarily required of a testator’s actual understanding, but rather of a capacity to understand these matters. Legally, capacity can be acquired via suitable explanation. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1925203/)

3. shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties ..

This is usually the most fertile area of disputes and with some evidence of a strange or unusual decision by the person making the Will (who for instance leaves his or her estate to a neighbour or distant and hitherto unknown relative or “friend”), is often the source of considerable debate in Will contest and Will dispute claims. Afterall a “disorder of the mind” might only be a mild dementia or other mental health condition such as depression. The problem, as ever, is in proving it has affected the Will makers decision making process. Although some evidence might point one way, it is almost guaranteed that the opponent or defendant to the claim will produce evidence pointing the other which creates considerable risk for the individual challenging the legal validity of the Will on this basis.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

Applyoing for probate can seem daunting - we can offer light at the end of the tunnel

WHY DID THE EARL’S WILD CHILD LOSE HER CLAIM TO A SHARE OF HIS £1.3M FORTUNE

/ 0 Comments

This unfortunate case is reported in The Times and a number of papers. An earl’s daughter who “hated” her family’s aristocratic lifestyle has lost her attempt at claiming a larger share of his £1.3m fortune (she appears to have been left only £20,000 by his Will and she might well have lost that to legal costs as well).
https://www.thetimes.co.uk/edition/news/earl-s-wild-child-daughter-lady-tara-wellesley-loses-claim-to-share-of-1-3m-fortune-d5k02hhl8

In The Times report a number of facts are mentioned which seem to have played a part in her losing the will contest claim that she brought. For instance:
• A “drink and drug lifestyle”
• A mutual estrangement (and a finding by the court that it was “due to Tara’s conduct alone”)
• She had “hated the aristocratic life” and the family’s “superior attitudes”
• Her disruptive “behaviour”
• “years of wasted assistance” by her father

1. WHAT SORT OF WILL DISPUTE CLAIM WAS THIS AND WHY DID IT FAIL?
This is most likely to have been a claim under the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63
In England and Wales there is freedom of testamentary disposition. This means that a mother or father can leave his or her estate to anyone (not necessarily their children). Lady Wellesley appears to have been a victim of this. Whilst she was left something it seems (£20,000), it was only a relatively modest part of this large estate.
The Inheritance Act ’75 referred to above gives the Court discretion to make additional awards to disappointed beneficiaries who are close to the deceased. It can be seen that this discretion can be influenced by lifestyle, the sympathy of the Court towards the Claimant and most importantly to the question of whether an estrangement was the cause and if so whose fault it was. In this instance it would appear the Court took against Lady Wellesley in a material way so that her will contest claim failed.

2. THE SIGNIFICANCE OF A JUST CAUSE FOR THE DISINHERITANCE IN A WILL DISPUTE AND WILL CONTEST CLAIM
This is clearly demonstrated in Lady Wellesley’s case. The Judge seems to have found the estrangement “was due to Tara’s conduct alone”. It made the Judge extremely reluctant to interfere with the Testator’s freedom to leave his estate as he wished. The leading case (in will contest claims of this type) of Ilott v Mitson 2017 supports this approach:
https://www.supremecourt.uk/cases/uksc-2015-0203.html
However it also says the court should be cautious in attributing blame for the estrangement to either party, which also makes it a little confusing. What we learn from this in will dispute and will contest cases is that there is a significant risk attached to each side of the will dispute. To be clear, the risk, as in all civil claims of this type, is that if the claim is lost, the loser will pay the winner’s costs which can be significant – in excess of £50,000 in cases of this nature (and of course the loser will have to pay his own costs too unless he instructed his lawyers under a no win no fee arrangement).

3. HOW IS IT POSSIBLE TO GUARD AGAINST THE RISK OF LOSING IN A WILL DISPUTE AND WILL CONTEST CLAIM OF THIS TYPE
I list the possible options, starting with the most important:
• Negotiate a resolution – if you go to trial you give up control to an individual who only meets you on a given day in artificial circumstances (at a trial) and who may not actually like you, your lawyers and your case
• Your lawyers should advise you on costs and risk as the claim proceeds – listen to them!
• It is possible to buy an element of protection against the risk of losing by taking on ATE insurance (“after the event” insurance) which can operate in the same way as a no win no fee arrangement; however it has a number of pitfalls:
– Whilst only paid if you win, the premiums can be huge (for instance £20,000 to £40,000 is not uncommon) and will come straight off any money you win (conversely, you won’t pay anything if you lose);
– The protection provided might be limited (for instance in a recent matter I obtained protection amounting to only about £46,000 including our own disbursements which was likely to be considerably less than the likely costs of the Defendant which were predicted to exceed £75,000)
– It might encourage you (and the Defendant) to a trial when really you should be settling (negotiating a resolution)
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator

legal texts may be of use in your will dispute. If you reach court, a judge will be involved to decide what the outcome should be.

CONTESTING A WILL UNDER A NO WIN NO FEE ARRANGEMENT – WHICH WILL DISPUTE CASES ARE WE MOST LIKELY TO WIN

/ 0 Comments

1. DO YOU WORK ON EVERY SINGLE WILL DISPUTE CASE WHICH IS REFERRED TO YOU?
We will only work on a will dispute and will contest case where we think we can win it. This means that the no win no fee arrangement in will dispute and will contest claims operates as a natural filter to ensure that our clients do not waste time in dealing with a contest over a will or estate, where there is no or little chance of success.

2. BUT HOW CAN YOU BE CERTAIN THAT YOU CAN WIN A WILL DISPUTE AND WILL CONTEST CLAIM AND WHEN?
The simple truth is that when a potential client approaches us with a dispute about a will and/or estate, we don’t know whether we can win the consequent will dispute and will contest claim, since we are not able to test the facts and the potential client is unlikely to have the significant paperwork. We are completely reliant on what the client tells us, although it is possible for us to supplement the information that they provide about the will dispute and will contest claim they are involved in with some research of our own. For instance, we (and indeed anyone) can carry out the following searches:
1. “Google” in relation to the addresses of relevant properties and other matters;
2. The government search facility for probate records (to obtain copies of the Grant and Will) (https://www.gov.uk/search-will-probate);
3. The Land Registry to determine who owns a property and when it was sold (https://www.gov.uk/search-property-information-land-registry).
These often reveal telling amounts of information about key facts in the will dispute and will contest claims.
Ultimately, if our client or potential client exaggerates key facts concerning the will dispute and will contest claims, then it is likely that our judgment about whether it can be won will be adversely affected and the will claim is likely to fail as a result. Unfortunately this can happen, in particular where the individual concerned has learned from earlier failed enquiries with competitors, which facts are helpful and which are not. Unfortunately, it will not assist in determining the eventual outcome as the most important filter of flawed or exaggerated claims is the claims process itself and in particular the opposition or potential defendants.
It follows that when we decide to take on a will claim, will dispute and/or will contest claim, we don’t have all of the necessary information at hand to be certain of a win. Clearly there will have been enough relevant material to confirm the will contest claim can be won. However, it will become clear within a matter of months at the most, whether a win is likely
to be certain. It follows there will be a number which we decide cannot be won at which point the claim is stopped.

3. SO WHAT FACTS AND/OR OTHER MATTERS ARE LIKELY TO PERSUADE YOU TO TAKE ON A WILL DISPUTE/WILL CONTEST CLAIM UNDER A NO WIN NO FEE ARRANGEMENT?
What follows is a very general list of facts and matters which might persuade us that a particular will contest and will dispute claim is likely to be won:
• We are being told the truth about the will dispute claim (we trust the client!)
• There is real value in the will dispute claim (we cannot survive otherwise regardless of your views of the merits of Solicitors earning money) so the estate has to have a reasonable value
• In a will claim where the key contention is that the will is not legally valid there is likely to be supporting and weighty independent evidence (for instance the evidence from medical records and/or of treating doctors that an individual had Alzheimer’s or Dementia of sufficient severity at the time the will was made). Self-serving evidence from our client and/or his or her acquaintances is unlikely to be helpful unless it points us to possible independent evidence from elsewhere
• A case where there is large degree of discretion (leeway) in the hands of the Court as to the outcome (for instance, a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63)
Why? Quite simply because this creates a considerable degree of risk (for each side), it is more likely to be possible to achieve a settlement
• The potential client to the will dispute and will contest case has nothing to lose as well (because he or she has no assets) and is determined to pursue the claim because this will mean it is more likely to be possible to achieve a settlement (your opponent in this case could be faced with ever increasing costs and associated risks which are never likely to be recoverable). However this does not mean we won’t work for someone who has assets! Every case has elements which are positive and negative; we have to form a view on the balance of the facts before us, so please don’t be put off approaching us with your enquiry!

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

Read More
separator


separator