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CONTESTING A WILL – THE DANGERS OF FAILING TO ENGAGE IN ALTERNATIVE DISPUTE RESOLUTION (LEADING TO TRIAL!)

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Whilst securing your lawyer to deal with your will dispute or will contest claim under a no win no fee arrangement might tempt you to go “gung ho” towards a trial, it should not be your first thought. A greater understanding of the costs and risks involved in a trial should help to temper this. For instance, it is not unusual for each party to accumulate costs well in excess of £100,000. Whilst you might think well that won’t affect me because I am certain to win (!), there are in fact a number of factors which suggest otherwise. For instance:

1. you might secure ATE insurance (“after the event”) to cover some of the costs (of your opponent) which you could be ordered to pay if you lost at trial, but it is almost certain you won’t obtain sufficient insurance protection to cover all of those costs;

2. the ATE insurance premium (which is only paid if you win – you pay nothing at all if you lose) is likely to be substantial (£20,000 plus!) and this will come directly from your winnings;

3. even if you win you will have to pay your insurance premium (above), a large proportion of your own costs (the losing party won’t be obliged to pay the entirety of your costs) and even worse, the losing party might not actually be able to pay the costs he/she is ordered to pay anyway;

4. it is not guaranteed that the losing party will be ordered to pay your costs anyway in Will dispute/Will contest claims, as there are instances where the court might consider the claim was reasonably brought and make no order as to costs (which will mean you will pay your own costs) or even worse, the Court might find that the person who made the Will was at fault (perhaps because he/she didn’t take formal legal advice in relation to the disputed Will) in which case it could order that each parties costs are paid by the estate!

5. it would be unusual in Will dispute/will contest claims for Solicitors to absolutely guarantee success at trial – normally at least a 35% risk is attached to cases of this nature, invariably because the trial Judge has such a wide discretion to include simply preferring the evidence of one witness over another.

Take, for example, a recent decision by a court over which relative died first, reported in The Times on Wednesday 14 August 2019 – https://www.thetimes.co.uk/article/stepsister-loses-300-000-battle-over-whose-parent-died-first-086xz6m0d

The issued needed to be resolved to determine which near relative inherited a couples’ estate but the parties could have compromised and indeed the winner tried to. One, a Ms Cutler, tried to settle the claim by offering to split the estate 60:40 in the other’s (a Ms Winter) favour and to engage in a Mediation. However her offers were rejected; Ms Winter indicated she wanted all of the assets. Ms Winter lost! She was ordered to pay the majority of Ms Cutler’s legal costs of £84,000 in addition to her own, which were estimated at about £95,000. She may have been “struck down” as it were by her somewhat high-handed approach – who knows. Plainly though her intransigence didn’t properly reflect the percentage risk and it came back to bite her in the end.

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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