Will the estate or my opponent have to pay my legal costs?
This is often one of the most important questions we receive from prospective new clients. If you have no ability to recover your costs, it may dissuade you from making a claim or mounting a challenge.
If you are a claimant, an entitlement to recover costs arises from the point that court proceedings are issued. As a point of principle, your reasonable costs are recoverable if you succeed with your claim. Costs are always at the discretion of the court though, and so there may be occasions when you have succeeded on a claim, or a particular point, but costs have not been awarded.
If you are a defendant or a personal representative of an estate, provided that you act properly and neutrally, you are entitled to recover your costs from the estate.
Do you do no-win no-fee?
No-win, no-fee” agreements, as they are often called, are a type of conditional funding agreement (“CFA”). They work like this: a condition of our firm being paid for the work that we have done is that we achieve a success for our client. If we don’t achieve a success, then we don’t get paid for the work that we have done. These types of arrangements will not be suitable for most types of cases. However, and not just with probate-related litigation, but litigation generally, it is important that we find the right funding arrangement that suits our client and the case at hand. We pride ourselves in our approachability, and that extends to talking about the issue of costs. If a CFA is appropriate to your circumstances, we can offer this type of funding arrangement to our clients.
Do you offer a free consultation?
You often hear that some solicitors are unwilling to discuss any new case with you without receiving money on account. Our Contentious Trusts and Probate team are always willing to speak with possible new clients initially, without requiring any financial commitment, or a discussion about lengthy and complex client engagement terms.
I have been cut out of a will. What can I do?
It is advisable to first establish whether there are any grounds for challenging the validity of the will, and if the will is capable of being challenged, what does the earlier will say? As a first stage, it is necessary to understand why the testator made the will that they did, which will involve obtaining disclosure of the will file (assuming the will was drafted by a solicitor). If, following a thorough investigation of the will, it appears difficult to challenge, certain categories of people can pursue claims under the Inheritance (Provision for Family and Dependants) Act 1975. This law permits applicants to seek provision from an estate where they have either been cut out of a will, left a meagre inheritance, or the intestacy rules do not provide for them. This is a complex area of law though, and we always tailor our advice to the unique and particular circumstances of each case. It is therefore not possible to give generic advice in respect of 1975 Act claims.
Can I obtain copies of the deceased’s medical records?
This is often the first port of call when it comes to challenging or defending the validity of a will on grounds of capacity. The Access to Health Records Act 1990 allows a personal representative of an estate or a person with a claim against an estate to make a written request for medical records. The relevant medical records may be held by a number of different organisations, particularly if the individual was residing in a care home, or was receiving specialist care. Certain organisations may have prescribed forms to complete when obtaining medical records, and some organisations are entitled to charge an administration fee for complying with a request. If you need help in obtaining medical records, please do not hesitate to ask us for assistance with this.
"The deceased had dementia when they made their will. How do I challenge it?”
Challenging a will on grounds of validity will commonly involve an inquiry into the deceased’s mental health and capacity at the material time that they gave instructions for the preparation of their will. If the testator was labouring with an illness of the mind (such as dementia) when they made their will, and that illness affected their comprehension and understanding of what they were doing, the extent of their wealth, or who their family members are, then a claim may be brought to challenge the validity of their will.
The executor won’t give me information about the estate. What can I do?
You should first establish that you are a beneficiary, or you have an interest in the administration of the estate. If you have an interest in an estate, you are entitled to information relating to that estate. This includes the provision of an estate account, which should set out amongst other things the deceased’s assets and liabilities as at their date of death. If you are being refused this information, you may ask the court to come to your assistance, and make an order that the executor must comply with your requests.
How long do I have to make a claim?
It depends upon the type of claim being made, but generally speaking, you should make your claim (or at least seek legal advice) as soon as possible. Claims under the 1975 Act should be made within 6 months of the date of a grant of representation being issued. Whilst there are no time limits for many actions in contentious trusts and probate disputes, there may be practical reasons why bringing a claim sooner rather than later is advisable, such as the estate being distributed, and the recipient beneficiaries spending it.
How long will my case take?
All types of litigation can often be unpredictable, and it is difficult to accurately estimate how long some cases may take. Each type of case can bring about different timescales, and each case can be different anyway. Much will depend upon the responsiveness of opponent parties. Contentious probate cases are notoriously problematic when it comes to estimating timescales, because even after a judgment has been given or a case settled, there may be additional ancillary administrative work that prevents bring into effect any judgment or settlement. We will always try to estimate timescales as best we can and right from the outset.
Can I stop probate from being issued?
You can stop a Grant of Probate or Grant of Letters of Administration from being issued. You do this by entering a Caveat at the Probate Registry. You will need to provide your name, address, and a summary of the reasons why a Grant should not be issued. You will need to pay a court fee of £20, and it will protect you for 6 months. Please note: if you prevent probate from being issue without good reason, you may leave yourself exposed to paying another party’s legal costs. It is recommended that you seek legal advice before applying to enter a caveat.