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CONTESTING A WILL – BASIC PRINCIPLES (PART 1 OF 2)

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This blog is the first of two discussing the basic principles that a potential claimant would need to consider if it appears they are likely to have a claim in relation to an estate.

In reality, there are three types of claim:
1. Firstly a claim against the legal validity of a Will;
2. Second a claim for a share of a near relatives estate under the Inheritance (Provision for Family and Dependants) Act 1975;
3. Thirdly, a claim that in effect, you already own a share of the estate.

Challenging the legal validity of a Will

Before we discuss the main claims that you can make against the legal validity of the Will, you must be aware of two important matters. The first is that to make the challenge it is not enough (or indeed essential) to be a near or close relative. You must simply have an interest in the outcome of your claim – in other words, if you are successful, you must be entitled to a share of the deceased’s estate. If not, you cannot proceed. This will mean either you must be entitled to a share under a previous valid Will or if none, by the rules of intestacy.

The second and more practical matter, is that it must be worthwhile doing. If the estate is very small or has been fundamentally dissipated already, then the benefit to you of the challenge must be worth the risk, cost and stress. By way of example, the costs of bringing such a claim to a trial can easily exceed £100,000 (for just one party!).

Well, here in very basic detail are the key elements to any challenge or contest against the legal validity of a Will:

  • It hasn’t been made “properly” – in other words when it was “done”, those involved didn’t comply with section 9 of the Wills Act 1837 (http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9) For example, it wasn’t signed by the person making the Will in front of two witnesses who also signed it. Yes, this is the only “formality”!
  • It has been revoked. A Will can revoked by another (subsequent Will), by the person who made the Will destroying it or by declaring an intention in writing to revoke it (which is then signed and witnessed in the same way as a Will). It is also revoked by marriage.
  • When it was “made”, the person who made it didn’t have sufficient “mental capacity” to do so, didn’t know and approve the contents of the Will, or actually made the Will under the influence of another so that the terms of the Will reflected the wishes of that “other” person and didn’t represent his/her own true wishes. For more information about “legal testamentary capacity” please consider our earlier blog (https://www.willclaim.com/5-things-aware-claiming-lack-testamentary-capacity/) and the following article from the Law Society Gazette (https://www.thegazette.co.uk/allnotices/content/100844). Lack of knowledge and approval usually goes hand in hand with a claim that the person who made the Will lacked sufficient mental capacity to do so. Beware of relying solely on a claim of “undue influence” because it is extremely difficult to prove (the person influenced is dead and anyone involved is unlikely to “confess”). Very often the claims of undue influence that we are asked to consider rely on assumptions by the very person who is seeking to rely on this claim which is usually insufficient to prove it. Again, please consider our earlier blog on the subject at https://www.willclaim.com/proving-undue-influence-reason/.

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.

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CONTESTING A WILL – WHAT HAPPENS WHEN THE WILL IS MADE ABROAD (PART 3 OF 3)

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This blog follows on from our second of three (blogs) dealing with the issues arising where a Will which is made abroad, is subject to a potential Will dispute or Will contest claim. Our comments below are for general consumption only and offer a guide to what one has to consider when a Will is made abroad. The most important issue for us is whether any claims arising can be dealt with in the English and Welsh courts.

Can claims arising where a Will is made abroad be dealt with in the English and Welsh Courts

In general, a challenge to a Will made abroad can be dealt with in the English and Welsh Courts. In our previous blog, we gave the example of the Wills Act 1963 Section 1, which provides “A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.”

See http://www.legislation.gov.uk/ukpga/1963/44/section/1

We discussed how the question of whether the property disposed of by the deceased’s Will was “movable” or “immovable” and its’ location would be taken into account by the Court. However, the Court will also look at the domicile of the deceased.

In the estate of Fuld (No 3) [1968] P 675 the testator, whose domicile of origin was Germany, studied in England, acquired Canadian nationality, and from 1946 until his death in 1962, resided in London and in Germany. He died in Germany, leaving an estate valued at approximately £6M, of which about 1/6 was in England. A probate action relating to his will and 4 codicils (the second of which was executed in England and the other 3 in Germany) raised as issues (i) the domicile at death; (ii) the choice of law applicable; (iii) the scope of the German conflict of laws rule; and (iv) whether any of the 5 instruments were entitled to be admitted to probate in England (challenged on the grounds of undue influence and lacked testamentary capacity). Scarman J held that:

i) The deceased retained his German domicile of origin (726G, 733H);

ii) Subject to Section 2 Wills Act, 1861, the formal validity of each of the testamentary instruments propounded depended upon whether it complied with German law, but that
questions of the admissibility and weight of evidence and of inferences to be drawn from the evidence were to be determined in accordance with English law (734D–E, 737A); as the testator was a Canadian national and therefore a British subject, section 2 of the Wills Act, 1861, made the will and first codicil formally valid (741A–B, 743B–C): the other 3 codicils depended for their formal validity upon German law and were by that law invalid.

iii) The law relating to testamentary capacity was in substance the same in German as in English law, the English Court, if conducting its inquiry de novo and not merely giving effect to a foreign probate, must in all matters of burden of proof follow scrupulously its own lex fori (735G–H, 737D); both German and English substantive law required a valid will to express the real intentions of the testator, but that the English rule of knowledge and approval was evidential in character and to be applied by the English court as part of its lex fori.

The following passages of Scarman J’s judgment are of assistance:

i) At 734 “Formal validity is a question of substantive law and would, in the absence of statutory provision, fall to be determined by the law of the domicile”;

ii) At 735 “Testamentary capacity. The general rule is clear. The capacity of a testator is to be determined by the law of his domicile; … I know of no distinction drawn between lack of capacity due to immaturity or status and incapacity arising from ill health, and I have not been referred to any English case which the distinction has had to be considered. It is, however, clear that the German law of succession will treat a will as void if the testator, through mental weakness or disturbance of consciousness, is unable to understand its contents…

Were it necessary to make a choice I would think it correct in principle to accept and apply the German concept of testamentary capacity. It is, however, essentially the same as the English. But this leaves open the question whether, if there be a difference between the two systems as to burden of proof, I should apply the German or English rule. For reasons which I give more fully in succeeding paragraphs, I have come to the conclusion that the English Probate Court, if conducting its inquiry de novo and not merely giving effect to a probate, or its equivalent, already granted abroad, must in all matters of burden of proof follow scrupulously its own lex fori.”

The above suggests the court will consider the jurisdiction issue and which legal principles are to be applied and apply them.

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.

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CONTESTING A WILL – WHAT HAPPENS WHEN THE WILL IS MADE ABROAD (PART 2 OF 3)

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This blog follows on from our first of three (blogs) dealing with the issues arising where a Will which is made abroad, is subject to a potential Will dispute or Will contest claim. Our comments below are for general consumption only and offer a guide to what one has to consider when a Will is made abroad. The most important issue for us is whether any claims arising can be dealt with in the English and Welsh courts.

Can claims arising where a Will is made abroad be dealt with in the English and Welsh Courts

In general, a challenge to a Will made abroad can be dealt with in the English and Welsh Courts. For example the Wills Act 1963 Section 1 provides “A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.” Thus a Will of movables or immovables will be treated as properly executed if its execution conformed to any of the following laws:

(i) the internal law in force in the territory where it was executed; or

(ii) the internal law in force in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence; or

(iii) the internal law in force in a state of which, either at the time of its execution or of the testator’s death, he was a national.

See http://www.legislation.gov.uk/ukpga/1963/44/section/1

This then clearly suggests that the English and Welsh Courts have jurisdiction in determining whether a Will made abroad has ben properly executed. However this is also governed by the question of whether the property the Will disposes of is “movable” or “immovable”.

The material or essential validity of a Will of movables is governed by the law of the testator’s domicile at date of death – Whicker v Hume (1858) 7 HL Cas 124; Re Priest, Belfield v Duncan [1944] 1 All ER 51; Philipson-Stow v IRC [1961] AC 727, Re Levick’s Will Trust, Ffennell v IRC [1963] 1 All ER 95. In Dellar v Zivy [2007] EWHC 2266 Kitchen J addressed the legal principles as to interpretation at paragraphs 21 to 31 held (he was not asked to consider challenge to the validity) and held “23. Second, once a will has been interpreted it may, however, be necessary to consider its material or essential validity. In the case of movables, this question is governed by the law of the testator’s domicile at the date of his death.

The material or essential validity of a Will of immovables is governed by the law of their location (“lex situs”) – Philipson-Stow v IRC [1961] AC 727; Re Levick’s Will Trusts, Ffennell v IRC [1963] 1 All ER 95. In Philipson-Stow v IRC [1960] AC 727 (pre the 1963 Act), the House of Lords (Lord Radcliffe dissenting) held that succession to movables was regulated by the law of the domicile of the deceased, and that succession to immovables was regulated by the lex situs. Lord Denning held that 763:

“Take next the case where there is a disposition of immovable property by will by means of a direct devise and not a trust for sale. There is no doubt that the proper law regulating the disposition is the law of the country where the property is situate and not the law of the testator’s domicile: see Freke v. Lord Carbery,55 In re Moses.56 There is, perhaps, again an exception in regard to the construction of his will: for if a question should arise as to the interpretation of the will, it will normally fall to be construed according to the law of his domicile at the time when he made his will. But this interpretation would itself be subject to the overriding requirement that it must in no way conflict with the law of the country in which the property is situate: for if the disposition is not one which is permitted or recognised by the lex situs, it cannot be given effect: see Earl Nelson v. Lord Bridport,57In re Miller.58 … for in construing a will, so as to see what a testator meant, every civilised country looks to see what he intended — and for this purpose you may legitimately look at the law he had in mind — but you only do this as a guide to find his meaning. You do not do it so as to find out the law which regulates his dispositions. He has no choice about that. Apart from this one question of construction, the succession to movables is regulated by the law of his domicile: and the succession to immovables is regulated by the lex situs.

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.

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CONTESTING A WILL – WHAT HAPPENS WHEN THE WILL IS MADE ABROAD (PART 1 OF 3)

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This is a complex area of law in will contest and will dispute claims. Accordingly we have divided it into three parts. Our comments below are for general consumption only and offer a guide to what one has to consider when a Will is made abroad. The most important issue for us is whether any claims arising can be dealt with in the English and Welsh courts.

Can claims arising where a Will is made abroad be dealt with in the English and Welsh Courts

In general, a challenge to a Will made abroad can be dealt with in the English and Welsh Courts. However where the Will writer has moved his or her household abroad, this may mean that a claim against his/her estate cannot be made under the Inheritance (Provision for Family and Dependants) Act 1975 (see for example our previous blog – https://www.willclaim.com/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/)

Under the 1975 Act, a claim for financial provision can only be made where the deceased was “domiciled” in England and Wales at the date of his/her death. Section 1(1) refers:
http://www.legislation.gov.uk/ukpga/1975/63/section/1

Of course the question of “domicile” itself can be extremely difficult to determine. In Kebbeh v Farmer & Ors (2015) EWHC 3827 (Ch) https://familylawhub.co.uk/default.aspx?i=ce5044) there is a useful summary of the relevant principles of the law of domicile by HHJ Purle QC at paragraph 19, which we have cut and pasted below for ease of reference:

“Relevant principles of the law of domicile

General principles

8. The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126).

(ii) (No person can be without a domicile (Dicey, page 126).

(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to128).

(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).

(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).

(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to138).

(vii) Any circumstance that is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).

(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to151).

(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to153).

(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).

9. I need to amplify two of these principles at this point.

The intention required for a domicile of choice ((vi) above)

10. The intention of residence must be fixed and must be for the indefinite future. It is not enough for instance that at any given point in time its length has not been determined.

In the next part of this three part series we look at the issues associated with a challenge to the legal validity of a Will made abroad.

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.

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CONTESTING A WILL – THE PROBLEM WITH COSTS (PART 3 OF 3)

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THE VEXED QUESTION OF “WHO PAYS” IN YOUR WILL DISPUTE OR WILL CONTEST CLAIM

Surely if I win my will dispute or will contest claim, my opponent will pay? After all, the loser always pays doesn’t he?

Well I am afraid the answer is not necessarily and in any event what do you/we mean by “win”. The latter question is for another day. There are a number of hurdles to overcome, the first, second and third of which we have demonstrated in our first and second blogs ….. in this, the third of our blogs on this subject, we explore the position after you have won at trial (and our fourth and fifth hurdles)!

Hurdle 4 – was it reasonable for the case to have been brought (and/or who caused the dispute)

This is another unusual feature of Will dispute or Will contest cases. The Judge (or Court) in this type of claim has a much more “inquisitorial” role than is normally the case. This potentially has quite profound implications in relation to the usual rule that the winner takes all and the loser pays his or her costs. The position was made particularly clear by one of the leading cases on this called Kostic v Chaplin 2007 EWHC 2909 (ch) ( https://swarb.co.uk/kostic-v-chaplin-and-others-chd-7-dec-2007/) :

1. The two exceptions were stated as follows by Sir Gorell Barnes P in Spiers v English [1907] P 122 at 123:

“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.”

If then the circumstances lead reasonably to an investigation (in other words there was some foundation to the claim against the legal validity of the Will although ultimately it was proven valid), the Court can and will Order that each party pays its own costs. If the person making the Will or those interested in the residue of the estate have been at fault, then each parties costs will be ordered to be paid by the estate, regardless of the outcome.

Hurdle 5 – getting your costs paid!

So far your “horse” (if we can call your claim a “horse”!?) has successfully navigated the hurdles we mention above and moreover, you have produced sufficient evidence to persuade a court to find in your favour and award you your costs (to be paid by your opponent). Is that the end of the story; well not quite. We referred to some potential problems here when we started on this journey. The fact is, if you have come this far, your costs are likely to be huge and even though they might be justifiable, they must still be assessed or “taxed”. An indication of how they might be dealt with can be found in the comments of Mr Justice Francis in Weisz v Weisz (see https://www.lawgazette.co.uk/news/judge-criticises-74000-legal-costs-for-inheritance-application/5102549.article). In short, you will not be encouraged! You can expect a significant percentage of your own costs to be “taxed” off, probably 30% or more which you will probably have to meet from your own pocket. There is then the prospect of trying to get the losing party to pay them and (of course), you will have had to pay your Solicitors even more money to deal with the costs assessment process.

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.

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CONTESTING A WILL – THE PROBLEM WITH COSTS (PART 2 OF 3)

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THE VEXED QUESTION OF “WHO PAYS” IN YOUR WILL DISPUTE OR WILL CONTEST CLAIM

Surely if I win my will dispute or will contest claim, my opponent will pay? After all, the loser always pays doesn’t he?

Well I am afraid the answer is not necessarily and in any event what do you/we mean by “win”. The latter question is for another day, but let us assume you win at a trial, even though 99.9% of will dispute and/or will contest claims never get that far.

There are a number of hurdles to overcome ….. in this, the second of our blogs on this subject, we explore the position after Court proceedings have started. As we showed in our first blog, you won’t necessarily recover your costs, even if you win at trial!

The first hurdle, explored before was “Hurdle 1 – your pre-action conduct”. In a nutshell it has to be “reasonable” and really you need to at least attempt so-called “alternative dispute resolution”, in particular a Mediation (see for example https://www.willclaim.com/contesting-a-will-the-dangers-of-failing-to-engage-in-alternative-dispute-resolution-leading-to-trial/ )

Hurdle 2 – your conduct during the course of the court proceedings

The same behaviours we refer to above are usually required during the course of court proceedings too. Moreover, if you have failed to engage in ADR (alternative dispute resolution) before the court proceedings were started, you are likely to be asked by the Court to reconsider this and even ordered to do so. We refer in this regard to our earlier blog at https://www.willclaim.com/contesting-a-will-can-a-court-force-a-party-to-a-will-dispute-to-engage-in-alternative-dispute-resolution/ where we refer to the Court’s powers to Order a FDR (“financial dispute resolution”) or ENE (“early neutral evaluation”) appointment which are effectively mediations, but with the Judge acting as a Mediator and in not such an “impartial” way! We suspect this might come as an unwelcome surprise to some gun ho litigants who are relishing their day in Court at a potential trial; moreover, the comments of a Judge at this point can be particularly powerful and harsh towards the party seen as most likely to be at fault in preventing a settlement.

Hurdle 3 – the “reasonable” defence of “no defence”

What an earth can this mean? Well, if the Will dispute or Will contest claim has some merit, for instance, where the Will in dispute was made at a time when she or he had some capacity issues (recorded in their medical records) but where no step (or no satisfactory step) was taken to have the person making the Will assessed by a medical professional prior to making the Will (refer to our earlier blog here – https://www.willclaim.com/has-it-become-less-risky-to-contest-a-will/ ), it is possible to “defend” the claim at no risk of being ordered to pay the winners costs. We refer in this regard to:

CPR 57.7(5) (“CPR” stands for “Civil Procedure Rules” see https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#57.7) which states, inter alia, as follows:

5)
(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.

This then can form another pressure point to force a settlement, especially where the witnesses called to “prove” the Will are less than comfortable with the prospect of being cross-examined and/or where the cost of this process might be problematic.

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.

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CONTESTING A WILL – THE PROBLEM WITH COSTS (PART 1 OF 3)

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THE VEXED QUESTION OF “WHO PAYS” IN YOUR WILL DISPUTE OR WILL CONTEST CLAIM

Surely if I win my will dispute or will contest claim, my opponent will pay? After all, the loser always pays doesn’t he?

Well I am afraid the answer is not necessarily and in any event what do you/we mean by “win”. The latter question is for another day, but let us assume you win at a trial, even though 99.9% of will dispute and/or will contest claims never get that far.

There are a number of hurdles to overcome to secure the payment of your costs and even then, a large proportion of your costs won’t be payable because your Solicitors costs will be subject to and reduced by a system of court assessment called “taxation”. Typically one can anticipate that about 30% to 40% of your costs could be deemed unacceptable by the court (“taxed off”). Does this mean your Solicitors can’t charge you their unrecovered costs? No, not necessarily; it depends on the arrangements that you have with them. Moreover there is a cost attached to the “taxation” or assessment process which you will have to pay and afterwards, of course, there is the problematic issue of getting the unsuccessful party to pay.

Well what are these “hurdles”?

Hurdle 1 – your pre-action conduct

By this, I am referring to how you/your Solicitor dealt with the correspondence and requests for papers before Court proceedings were started.

In most types of claim, there is a “Protocol” or set of rules to comply with even before there are any court proceedings. Curiously, there is no such protocol for Will dispute and Will contests claims. Nevertheless, the Courts/Judges have made a ruling called a “Practice Direction for Pre Action Conduct” which dictates that you must behave in a particular way, notwithstanding you are not yet before the Courts as it were. I have cut and pasted the relevant part below.

Steps before issuing a claim at court

6. Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—

(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time – 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an
explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
(c) the parties disclosing key documents relevant to the issues in dispute.

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Experts

7. Parties should be aware that the court must give permission before expert evidence can be relied upon (see CPR 35.4(1)) and that the court may limit the fees recoverable. Many disputes can be resolved without expert advice or evidence. If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.

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Settlement and ADR

8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.

In summary, pre action (before court proceedings are instigated) the parties must:
• In general act reasonably and cooperate with each other.
• Set out their claim and defence in detail.
• Provide each other with appropriate papers which are relevant
• Litigation meaning the actual court case/proceedings is a “last resort” – really you must now demonstrate you have participated in so-called “alternative dispute resolution” (“ADR”), which means you have attempted to negotiate, tried mediation (a negotiation using a professional facilitator called a “mediator”) or another form of ADR which could be a neutral evaluation by an independent Barrister – see for example – https://www.willclaim.com/contesting-a-will-the-dangers-of-failing-to-engage-in-alternative-dispute-resolution-leading-to-trial/

If you don’t behave as above before the Court claim is started in Will contest or Will dispute cases, you are likely to find it difficult to persuade a court to award you costs even if you win your claim. In Burgess v Penny 26 July 2019 (see also https://www.4-5.co.uk/publications/view/patrick-taylor-mediating-contested-wills ) this is exactly what happened. Each side were asked to bear their own costs. A failure to agree to a mediation was cited as one reason for the court reaching this decision. As per the Judge: She said,

“…. mediation is not just about one side getting what they want. That is a misconception of the purpose of mediation. Mediation should be about attempting to reach a solution which both parties can live with as a better alternative to litigation. A trained mediator would have told the Defendants that in litigation they might well not get the admission they were seeking (and indeed they did not). Taking at face value their assertion that they were happy with an equal division of the estate, all parties could have focussed on who was to take the grant, and, since the discussion on the eve of Freda’s funeral (referred to in detail in the judgment), it was apparent that the Claimant did not want to take the grant on his own if at all, I surmise that he would have been open to such a discussion”.

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.

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CONTESTING A WILL – DISTRIBUTING THE ESTATE IN THE FACE OF A CHALLENGE AGAINST THE WILL

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CAN EXECUTORS FACED WITH A CHALLENGE AGAINST THE LEGAL VALIDITY OF A WILL SAFELY DISTRIBUTE THE ESTATE?

This scenario might arise where after a Grant of Probate, a claim is raised or maintained that a Will is not legally valid; the most common claims in this regard are:

1. a claim the Will wasn’t properly signed (or at all) by the person making the Will and/or because his or her signature wasn’t witnessed by two witnesses who also signed the Will (see section 9 of the Wills Act 1837 – http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9);

2. a claim the Will isn’t valid because the person making it lacked sufficient mental capacity;

3. a claim the Will isn’t valid because the person making it was unduly influenced;

4. a claim the Will isn’t valid because the person making it didn’t have knowledge of its contents.

The problem here for the Executors is that the Grant can still be revoked (and the Will declared invalid) and the Executors can therefore find themselves liable for having distributed an estate in the face of (knowledge of) a will contest claim (against its legal validity). For a professional Executor or amateur Executor, this can mean a substantial claim to recover the wrongly distributed estate can be raised against him or her. Whilst the Executor or Executors can insist on an indemnity from the person who is interested in the outcome of such a dispute, namely the main or residuary beneficiary of the deceased’s estate, that is only as good as the status and means of the indemnifying party.

There are a number of solutions to this (in the face of reluctance on the part of the main protagonists to the claim – the beneficiaries under the current Will and those who would recover if it is proved invalid – to pursue it):

1. the Executors can bring a claim themselves to prove the Will in solemn form, but this is full-on litigation with huge costs risks and understandably the Executors are unlikely to want to commit themselves to such a course of action (see CPR 57 (1) and note the potential remedies etc – https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#57.1);

2. the Executors can make an application for Directions under CPR 64 for permission to distribute the estate unless the will contest claimant (or Defendant!) brings a probate action or will dispute claim within a set time limit. This is a “put up or shut up” application. If the will contest or will dispute claimant then does brings his/her claim, the Executor(s) can adopt a neutral stance and leave it to the real protagonists (see above) to bring and/or defend the claim as applicable.

We have set out below some useful parts from CPR 64:

Scope of this Section

64.2
This Section of this Part applies to claims –
(a) for the court to determine any question arising in –
(i) the administration of the estate of a deceased person; or
(ii) the execution of a trust;
(b) for an order for the administration of the estate of a deceased person, or the execution of a trust, to be carried out under the direction of the court (‘an administration order’);
(c) under the Variation of Trusts Act 19581; or
(d) under section 48 of the Administration of Justice Act 19852.

This second option is by far the safest course and should flush out any genuine claim. Moreover, simply the threat of it with warnings as to costs (that a claim for costs would be made against the reluctant claimant) should be sufficient. There is some relevant case law which should be reviewed in advance of proceeding with this, but see in particular, a very useful article on this area by Oliver Mitchell of Guildhall Chambers:

http://www.guildhallchambers.co.uk/uploadedFiles/Property_and_Estates_E-News_January2018.pdf

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.

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