1. How can my dispute be resolved?
Disputes over probate are highly complex, requiring technical legal knowledge and robust litigation skills. We are specialists in this field, with experience in all courts up to the Supreme Court. Most of our court cases are conducted in the Chancery Division of the High Court in London.
Despite the stereotypes around litigation, disputes are capable of resolution well before court proceedings are issued. However, to achieve that, the right points need to be raised. We have experience in all forms of alternative dispute resolution (especially negotiation, round table meetings and mediation) and we will always consider what is best for your specific case.
2. Do I have to come to your offices?
It is certainly easier, and generally more cost efficient, to have an initial meeting with your solicitor face to face at our offices. That way, your solicitor can ask all the questions they need answers to in order to understand your case and advise you on the possible solutions to the problem you are facing. A meeting also gives you a chance to ask questions of your own. Trying to get together all of the necessary initial information and answers to questions is difficult if there is a lot of to-ing and fro-ing with us via email or telephone.
However, if you cannot make it into the office, we can of course work with you over the phone or via email, or we can arrange a discussion via Facetime. Your solicitor can also visit you at home should you wish, but this will incur the additional cost of their travel time and expense (unless you are a disabled client).
3. What does the court process involve?
Court proceedings are not always necessary to resolve a dispute. Indeed the courts can penalise a successful party for rushing into litigation without trying to resolve the dispute first, and there are “protocols” that need to be followed before court proceedings are commenced. The majority of cases are resolved without needing to go through the courts, and this is usually much quicker and cheaper, and less risky. However, if you are unable to reach an acceptable resolution with your opponent, then the matter may end up at court.
Slightly different processes apply to different types of claim, when court proceedings are required. However, generally the stages in litigation are:
- Pre-action stage (as above) – writing to your opponent setting out your case, considering their response, exchanging key documents and considering alternative dispute resolution
- Statements of case - preparation of the claim for issue, issuing the proceedings, defence (and possible counterclaim), reply (and defence to counterclaim)
- Case Management Conference (CMC)/Costs and Case Management Conference (CCMC) - where the court will give the parties instructions on the steps they need to take and the timetable to be followed to move the case along
- Disclosure of (further) documentary evidence
- Witness evidence
- Expert evidence (where necessary)
- Preparation for trial
- Trial - all parties and any witnesses will be cross examined by a barrister (counsel) and legal submissions will be made. The judge will then give his/her decision on the case.
Negotiations or another form of ADR (eg mediation) can be held at any time and the settlement process can run concurrently with court proceedings.
4. Once a court case is started, how do I stop it?
Once started, the court process can finish only by agreement between both parties or by way of a court order. Unless there is a technical mistake made by your opponent (or your opponent’s case is very weak, in which case you may be able to apply for summary judgment), an order will be made by the court only after a full trial.
Alternatively, you can discontinue your claim at any stage. This is only possible when you are the claimant in the case. If you are a defendant, you cannot withdraw the claim. However, discontinuing a claim has significant cost consequences, as you will be expected to pay your opponent’s costs unless you can negotiate some other outcome.
5. Will I have to go to court?
You do not need to go to court to issue a claim – we will do it for you.
You can come to court with us / the counsel we instruct for any interim hearings or CMC if you wish, but you do not have to. If you have a representative present in court, the court will not draw any adverse inference from the fact you are not there. You will however need to be in court and give evidence if there is a trial of your claim.
6. Will my witnesses have to go to court?
Again, your witnesses need not attend court, unless there is a trial of your claim.
The parties to a case are free to choose which witnesses to call to give factual evidence in support of their case. However, if they do not call a witness who might be expected to give evidence that is material to the case, the court can draw adverse inferences from that absence. Therefore, it is expected that your witnesses will be at court for the trial.
It is possible to compel any reluctant witnesses to attend court by way of a witness summons, but in practice this is rarely done.
7. How long can it all take?
Each case is different. A solution to a particular problem may be available in a matter of weeks, another problem may take years to resolve.
If a court case is issued, the court process on average takes 18 – 24 months. We will endeavour to help you avoid this by engaging with your opponents in a productive dialogue to achieve a settlement that is acceptable to everyone.
8. How much does it cost?
Again, this depends entirely on the circumstances of your case, and there is no set amount or limit to the money that can be spent pursuing or defending a claim. Generally to take the matter all the way through the courts to a trial might cost anything from £50,000 upwards. We will always keep you updated as to costs as your matter progresses and be upfront about the costs and risks of continuing. At each key point in the case we will advise you whether the costs of continuing to the next stage are justified, bearing in mind the benefit you are likely to gain by doing so.
9. How can I cover costs?
We generally charge on a time spent basis according to your solicitor’s hourly rate plus VAT. You would be responsible for your own costs from the outset, and also for meeting any disbursements (expenses) that we need to incur along the way such as court fees, counsel’s fees and mediator’s fees. However, if you are successful in your case, you would expect to recover a proportion (normally about two thirds) of your legal costs from your opponent at the end of the matter.
In some cases we do offer Conditional Fee Agreements (CFAs). A CFA means that you only pay part of your solicitors’ fees (or in some cases you do not pay anything towards your solicitors’ fees) as the case progresses. If, following trial, you lose the case, you do not pay any more towards (or any part of) your solicitors’ fees. If you win, though, or if we achieve a negotiated settlement for you, your solicitor is entitled to the balance of their fees (or to the entirety of their fees) calculated on an hourly basis and to a success fee on that part of your fees which you did not pay as the case proceeded. You will never recover a success fee from your opponent. We will offer a CFA only for cases that we consider have a high enough chance of success, and which are of a high enough value to leave you with a meaningful award at the end of the case, after our fees and success fee have been taken. Your opponent (or the estate) also needs to be good for the money.
Please note that where we act on a CFA, you will still need to pay any disbursements as the case proceeds, and we may well say that we can only offer a CFA after you have paid us privately to undertake the necessary investigatory work, since we are unable to assess the strength of your case before then.
Third party funding, or disbursement funding, is sometimes available to assist with our fees and/or with disbursements. Our website contains more information on funding and insurance options for Dispute Resolution matters, and you are also encouraged to discuss this with your solicitor at the first meeting.
10. Who pays the costs?
Unless you have a BTE insurance policy in place (in which case your insurer would pay part of your costs and you would be expected to pay the balance), or we have agreed to a “no win no fee” CFA, you will be responsible for paying your costs or the relevant proportion of your costs as the case proceeds.
The general rule in litigation is that “the loser pays the winner’s costs”. Hence, if you win your case in court, you can expect to recover about two thirds of your costs from your opponent (the losing party).
Beware however, that if you lose your case, you will normally be ordered to pay your opponent’s costs. In practice this means that you are likely to have to pay about two thirds of those costs. This is in addition to your own costs (except under a “no win no fee” CFA). It is therefore important to consider how you will meet your opponent’s costs if you lose the case. Insurance may be available for this. A legal expenses insurance, called Before the Event Insurance (or “BTE”) is sometimes a bolt-on to a house insurance policy that you may already have. More often legal expenses insurance is however offered as a new stand-alone policy known as “After the Event” or ATE insurance. Our website contains more information on funding and insurance options for Dispute Resolution matters, and you are also encouraged to discuss this with your solicitor at the first meeting.
Because court proceedings have significant cost consequences, we will always advise you when court proceedings are not in your best interests, or are so risky from a commercial point of view that you should not pursue them.
It should not be assumed that in all cases concerning an estate or trust, the estate or trust will cover all legal fees. It is more of the exception than the rule for an estate or trust to be made liable for all fees. Ask your solicitor for detailed advice if this concerns you.
The death of a loved one is an incredibly difficult time for all involved. In our latest ‘ask the experts’ piece. Amy Wilford answers your questions on what to do if your loved one either hasn’t left a will, or you don’t agree with the contents of their will.
11. My wife has recently died of Covid-19 without leaving a will. What am I entitled to?
A person who dies without leaving a will is known to have died “intestate”. Their estate is split in accordance with the intestacy rules. As the husband of the deceased, you will be entitled to keep all the assets (including property), up to £270,000, and all the personal possessions, whatever their value. The distribution of the remainder of the estate will vary depending on whether your wife had living children, grandchildren or other direct descendants, e.g. great-grandchildren. If she did, the remainder of the estate will be shared between you and them. You as husband get an absolute interest in half of the remainder, the other half is then divided equally between the surviving children. If a child has already died, their children will inherit in their place.
12. My partner assured me I would be provided for if he died, but he has left his entire estate to his children. Where do I stand?
You potentially have a number of options depending on the circumstances.
- If you were co-habiting with your partner and living as a married couple/civil partners, for two years prior to his death, you may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Act allows you to make an application on the basis that the will did not make reasonable financial provision for you. You can ask for such financial provision as it would be reasonable in all the circumstances of the case for you to receive for your maintenance. The court has a wide range of powers to make orders, the most common being for the payment of a lump sum out of the estate.
- Another possible option might be a constructive trust claim against your partner’s property if for example it is held in your partner’s sole name, but the common intention between you was that it was a jointly held asset. If you made direct contributions to the purchase price or mortgage for example, then that would usually justify the necessary elements of a constructive trust, as would you having spent a significant amount of time and money in renovating the property.
- A third possibility may be a proprietary estoppel claim. There are three elements which must all be present:
- A promise, assurance or other encouragement by your partner, which gave rise to an expectation that you have an exclusive interest. For example your partner promised that you would be left his property on his death;
- You relied upon that expectation; and
- You suffered a detriment in consequence of reliance on that expectation, e.g. you paid for renovations at the property assuming it would one day be yours. Again, the court has a wide discretion as to how to compensate a claimant such as yourself in claims of this kind.