Inherent Danger of a Trial

The Inherent Danger of a Trial

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss how trials can go horribly wrong in unexpected ways and what this means for concluding a Will contest or Will dispute claim

Why is it dangerous to take a Will contest or Will dispute claim to trial?

As most practitioners in this field know, a trial has an often unexpected way of drawing out facts which even the most experienced practitioner can fail to predict. This is invariably caused by witnesses coming up with unexpected answers to questions.

In a previous blog we explored the dangers of not negotiating from the perspective of the courts encouraging parties to a dispute to engage in something called “ADR” (meaning “alternative dispute resolution”) and how not doing so could lead to adverse costs consequences:

The other obvious danger is that you lose at trial because of an unexpected reversal by a key witness during cross-examination or simply by the witness providing new evidence which contradicts your case. This is not as unusual as one might imagine.

The forgetful or lying witness

It is as difficult to identify a lying witness as it is to identify a witness who might forget key matters during cross-examination. A trial of a Will contest or Will dispute/inheritance claim is as likely as any other to produce strange and unexpected outcomes. As mentioned most practitioners are aware of this and describe it as “litigation risk” and many would ascribe a percentage to this as high as 25%, meaning that one in four cases might have this unexpected twist.

In McCabe v McCabe 2015 EWHC 1591 (Ch) for example a will witness described that he had not been a witness to the Will:

In the more recent case of The British University in Dubai v Kambiz Ebrahimi and others EWHC 757 (Ch) 26 March 2021 the Will witnesses evidence proved to be even more problematic.

We have copied and pasted a link to this case below. It is well worth a read:

The legal validity of two wills were in issue: the 2012 Will and the 2018 Will. The entirety of the case turned on whether the 2018 Will was witnessed in accordance with section 9 of the
Wills Act 1837:

By way of reminder this section confirms that for a Will to be valid the following has to apply:

Signing and attestation of wills
[F2(1)]No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)it appears that the testator intended by his signature to give effect to the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)each witness either—
(i)attests and signs the will; or
(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

In other words, the Will must be witnessed by two witnesses who witnessed the testator signing or acknowledging his/her signature on the Will in the presence of each other and who then each sign it as well in the presence of the testator.

The witnesses to the 2018 were undone by the forensic approach of the Claimant’s Solicitors to their evidence. They alleged they had travelled to the testator to witness him signing the Will and to sign it themselves. However, their bank account statements suggested that they were elsewhere at the time. One eventually conceded his initial evidence was incorrect which all but condemned the other. In consequence the court found against the legal validity of the 2018 Will on the basis it hadn’t been properly executed in front of two witnesses. At the end of his Judgment, HH Judge Davis-White QC, referred the case to the DPP for possible criminal action!

If you consider any of these facts and matters are of interest, 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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