CONTESTING A WILL – IS A THROW OF THE LEGAL DICE?
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).
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):
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.