Times of Tunbridge Wells Article - August 2017
Q: My father died in February of this year. He changed his will shortly before his death to leave everything to his new girlfriend so my brother and I have been left out. It does not seem fair, is there anything we can do?
A: Unfortunately, it is not the case that you are able to contest a will simply because you believe it to be unfair. There are only limited grounds on which you can legally challenge a will including:
- Lack of proper formalities – the will needs to satisfy all of the legal formalities. We would need to see a copy of your father’s will to see if these formalities have been met
- Lack of testamentary capacity – i.e. whether your father understood that he was making a will and had the necessary mental capacity to do so. We would need to consider whether your father was suffering from dementia for example or any other illness that may have affected his mind at the time
- Lack of knowledge and approval – your father must have known and approved the contents of his will and appreciated the extent of what he was giving to whom, i.e. that he was excluding his children in favour of his girlfriend. It is often closely related with testamentary capacity above and we would need more information to make a judgment here
- Undue influence and fraud – for this challenge to succeed there must be coercion or fraud. There is a very high threshold to challenge a will on this basis and it is rarely brought as a claim on its own but is more commonly added to another challenge for example lack of capacity. Again, it is something we could discuss to see if it is of relevance
Before considering making any potential challenge to your father’s will, it is worth checking whether you benefit from any earlier will he made, as if you were to be successful in your claim, it would be the previous valid will that would be admitted to probate.
It is common to request a copy of the file from the solicitors who prepared the will in order to review the circumstances surrounding the making of it and to request copies of any previous wills.
It is also worth considering as a separate type of claim whether you and your brother could bring a claim for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. As an adult child (as with spouses, dependants and limited others) you could bring a claim on the basis that the provision you receive is not reasonable. In order to assess such a claim we would need to look at a number of factors, including amongst others: your financial position versus the girlfriend of your father and the size of the estate. You would have to act quickly as you only have six months from the date of the grant of probate to bring such a claim.
It is very important to assess the merits of such claims very early as the costs in bringing them can quickly become disproportionate.
If you would like to discuss the issues detailed above, please contact Amy Wilford 01892 701306 firstname.lastname@example.org.
Alternatively please visit our website www.ts-p.co.uk/WillDispute
Times of Tunbridge Wells Article
Q. I have been cut out of my parents Will, what can I do?
A. One or more of a number of claims could be considered, depending on your particular circumstances. Broadly these comprise of probate claims, claims under the Inheritance (Provision for Family & Dependants) Act 1975, or claims for proprietary estoppel.
Probate claims are claims challenging the validity of a Will. Challenges can be brought on various grounds as detailed below:
- the deceased lacking the necessary mental capacity at the time of providing instructions to their solicitors to prepare the Will or when executing the Will;
- the deceased not having a full appreciation of the size of their estate and the various people who may lay claim to it when making their Will;
- the deceased being subject to the undue influence of someone else when making their Will; or
- the Will not being validly executed.
A 1975 Act claim is based on the Will being valid but the deceased having made inadequate (or no) provision for close family members or dependants. To bring such a claim you must fall into one of the categories of eligible people – which includes children (particularly but not exclusively minor children) or others treated as children of the family even if not the deceased’s biological child. Any court proceedings must be issued within six months from the date of the grant of probate.
Finally, proprietary estoppel claims are claims where the deceased made a clear promise during their lifetime to the effect that the claimant would inherit certain specific property, and the claimant relied on that promise to their detriment. For example; giving up your life to work on the family farm for low wages in reliance upon the promise that the farm would be yours, but this promise not being honoured in the Will.
Q. If court proceedings are necessary, how can I fund the claim?
A. A pre-action protocol process must be followed before launching into court proceedings. Full details of the legal and factual basis of your claim must be provided in writing, supported by any key documents, and a full written response has to be provided. Hopefully this will then lead to settlement discussions (eg via negotiation or mediation), but if it does not, or if one party refuses to engage properly in the protocol process, court proceedings may be necessary. They will also be necessary if a limitation deadline is imminent (eg if nearly six months has passed from the grant of probate and you have a 1975 Act claim) but it may be possible to start your claim and then agree with your opponent to put it on hold so you can then go through the protocol process.
Claims are expensive to run through the court, even if you reach a settlement before trial. Often a barrister’s fees and an expert’s fees have to be paid as well as court fees and solicitors’ fees. Trials are also inherently risky, and the stakes are high.
For strong claims worth £100,000 or more against financially secure opponents, a team approach involving the client, the solicitor, a third party litigation funder and an insurer is likely to be best. Essentially the client pays about 30% of the solicitor’s fees as the case proceeds but none of the other expenses; if the case is won or a settlement is negotiated, the solicitor and funder share the winnings with the client, but if the case is lost nearly all of the client’s 30% contribution is refunded and the exposure for the opponents’ costs is fully insured. It is what we call virtually risk-free litigation.
If you would like to discuss the issues detailed above please contact Nicholas Horton, Partner, 01892 701313.
Q. My business received some professional advice that turned out to be wrong. It has cost us a significant amount of money to sort the situation out. We would like to bring a claim through the courts to recover our losses, but I am concerned about the cost and risk of taking legal action. Is there a funding solution that could help?
A. Funding disputes can be a challenge. For many businesses it can prevent access to justice. Even where funding can be supported, however, there is always a risk, no matter how small, of an adverse costs order which simply could not be justified.
In recent years law firms have started to work with litigation funders to help businesses meet the cost of bringing a claim, which they cannot afford to run, or to risk losing.
The starting point is the same as for any dispute – does your case have a good chance of success, and can the opponent afford to pay the amount of your claim and costs? If the answer to both of these questions is yes, litigation funding and costs insurance could be available.
The way such schemes work is relatively simple:
• Solicitors will work under a Partial Conditional Fee Agreement (PCFA) meaning that usually, around 60% of their fees are paid as the case progresses and 40% are only paid if the case is successful.
• Typically you would have to pay half of the 60% PCFA fees as the case progresses. The other half would be paid by the litigation funder, as well as all of the other litigation costs, such as court fees, barrister’s fees, and expert’s fees.
• The litigation funder will arrange insurance to cover your liability to pay the opponent’s costs, should the claim fail. The insurance would also cover most of the costs you have paid under the PCFA.
• This means your overall costs risk would be about 2% of the cost of pursuing the case, as opposed to the normal risk of having to pay all of your own costs and around 70% of the opponent’s costs, if the claim is unsuccessful.
• If you are successful, you will end up with approximately 70% of the damages awarded at trial, or any settlement sum negotiated. The remaining 30% is usually sufficient to cover the deferred PCFA costs and all the costs of the litigation funding.
This form of litigation funding means you can continue to run your business while still pursuing a damages claim, knowing that there is little cashflow impact and the downside risk is reduced to as little as 2% of the total costs of bringing the case.
You would need to work with a specialist law firm and expert litigation funder, both of whom will share in the risk and cost of pursuing your claim.
Thomson Snell & Passmore have partnered with Augusta Ventures to provide such a litigation financing solution. Augusta Ventures is a unique litigation funder targeted at the SME market, and typically provides funding of up to £600,000 per case.
It has retained a panel of expert lawyers, economists and financiers to ensure that in conjunction with partner firms like Thomson Snell & Passmore, they can provide you with the best possible litigation funding solution.
If you would like to discuss the issues detailed above please contact Douglas Skilton, Partner, 01322 623715.