divider

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.

separator

separator