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The Problem With Settling Will Dispute and Will Contest Claims After Court Proceedings Have Been Issued

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss pre-trial settlements involving disputed or contested Wills after court proceedings have been initiated

What is the problem with settling your Will case after Court proceedings have been issued and served?

The position is this. Your claim (or your opponents claim) against the legal validity of a near relatives Will has dissolved into court proceedings; each party decide at that point that the costs and risks inherent in cases of this nature mean that they must resolve their differences and settle the case. In most other types of claim, settlement terms once presented to the Court, would be automatically approved and the case would end. However, the position is different in cases involving the legal validity of Wills. The Court has an inherent jurisdiction to rule on the legal validity of a Will and it cannot simply wave a settlement through.

For more information about a legal challenge to the validity of a Will, refer to our recent blog about Hughes v Pritchard:

Hughes v Pritchard – back to basics in Will dispute and Will contest claims where the primary issue is testamentary capacity – Will Claim Solicitors

The Court rules in relation to the legal validity of Wills

These are provided by something called Part 57 of the “Civil Procedure Rules” –

PART 57 – PROBATE, INHERITANCE, PRESUMPTION OF DEATH AND GUARDIANSHIP OF MISSING PERSONS – Civil Procedure Rules (justice.gov.uk)

Under the Practice Direction (Probate) accompanying these rules, paragraph 6.1, determines what must be provided for the Court to approve settlement terms:

PRACTICE DIRECTION 57 – PROBATE – Civil Procedure Rules (justice.gov.uk)

These rules reflect the requirements of s 49 of the Administration of Justice Act 1985. This states:

49Powers of High Court on compromise of probate action.

(1)Where on a compromise of a probate action in the High Court—

(a)the court is invited to pronounce for the validity of one or more wills, or against the validity of one or more wills, or for the validity of one or more wills and against the validity of one or more other wills; and

(b)the court is satisfied that consent to the making of the pronouncement or, as the case may be, each of the pronouncements in question has been given by or on behalf of every relevant beneficiary, the court may without more pronounce accordingly.

(2)In this section—

  • “probate action” means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business; and
  • “relevant beneficiary”, in relation to a pronouncement relating to any will or wills of a deceased person, means—

(a)a person who under any such will is beneficially interested in the deceased’s estate; and

(b)where the effect of the pronouncement would be to cause the estate to devolve as on an intestacy (or partial intestacy), or to prevent it from so devolving, a person who under the law relating to intestacy is beneficially interested in the estate.

Consents provided by every relevant beneficiary

This is the fundamental requirement. Any person who could be beneficially interested must consent. So if the settlement pronounces for or against a Will, those affected by that must all agree (be they beneficiaries of another Will who could otherwise be entitled and/or by the rules of intestacy).

But what happens if they chose to ignore the request to consent?

The Court can make a “put up or shut up” order. The court’s jurisdiction to do so was explained by Carnwath LJ in Sherman v Fitzhugh Gates [2003] EWCA Civ 886 at [57]:

The textbooks do not appear to offer an easy solution in such circumstances. There is no statutory timelimit for proceedings to challenge the validity of a will. It seems that an action may be struck out if there has been unreasonable delay, but the cases offer little guidance as to what this means in practice (see Williams op cit para 35-03; Re Flynn [1982] 1 WLR 310), or as to what directions the court can give. This subject was not explored in detail in the submissions before us. The powers of the court to control abuse and delay have been strengthened by the new Civil Procedure Rules. However, even before those changes, the court’s powers of direction under the old RSC Order 85 (administration actions) were very wide. I see no reason why they could not have been used to impose a time-limit on a potential challenge to the probate – in effect a direction to “put up or shut up” – following which the executor would be free to distribute under the will.

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 and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/nowin-no-fee/.

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