David Wedgwood, Partner
Contested Wills Team
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Contested Wills cases have risen dramatically in recent years. In 2009, there were 110 cases that came to a trial in the High Court, compared to 80 the previous year, and just 10 in 2006. The reason for this increase is not clear. Some lawyers have identified the recession as a key reason for the rising number of legal challenges against estates. Other factors include the increasing complexity of family structures, and the growing trend for DIY wills, which often give rise to doubts as to validity of the Will.
My own experience is that clients take claims for many personal reasons. Some clients do give their own personal financial uncertainty as a fundamental reason for taking a case. Many others come to us with a heart felt sense of grievance at what they see as an injustice dished out by a loved relative.
Clients considering such claims are often understandably emotional after suffering a bereavement. They are faced with a complex area of law, where the use of Latin and jargon are still commonplace. Some do not know where to turn to and rush into entering a Caveat, the first formal stage in a Court action. That can be dangerous as unless these claims are dealt with correctly there is an exposure to a large adverse costs order.
Relatives should seek calm objective advice at the outset. They need dispassionate advice on the merits and the economics of taking a claim. Whatever their personal motivation, without underlying merits and an economic rationale, it is unwise to take an expensive claim.
Despite the recent downturn, over the past ten years property prices have risen relative to legal fees. As such, a strong claim involving a property is more likely to lead a lawyer to take on a claim than before. This is part of the reason for the increase in claims. Whether this increased access to justice continues after the Government’s proposed changes to public funding is doubted.
The government’s recent announcement on the withdrawal of legal aid for this type of claim could be seen as an extension of a long process restricting public funding starting in the 90’s. This area was left relatively unaffected, save that in 2005 protection from adverse costs was withdrawn. The new proposals are that legal aid for this type of work will be withdrawn altogether next year.
Other funding arrangements are available and part of the growth in litigation stems from online marketing. Here claims companies offer Conditional Fee Agreements and After the Event insurance. Family Provision claims are particularly suited to such arrangements where the costs and outcomes are more predictable. Whilst we do offer these arrangements, they are not always the best for a client. In some circumstances we suggest other funding routes, such as legal aid or legal expense insurance. This is because often in these particular claims the estate pays all legal costs. This leads to a reduced estate which can lead to reduced legacy for the client. The legal aid option may fall away if the new government proposals come in next year. Whilst we will continue doing this work on Conditional Fee Agreements (“No Win No Fee”), there may be a reduced level of claims.
I always recommend that clients seek specialist advice before taking a claim. At present, after the entry of a Caveat, it is all too easy to get quickly drawn into Court. Often clients arrive at the office with an ongoing probate claim. We believe that the procedure itself needs a radical overhaul. The Jackson Report, now approved by the government, recommended the adoption of a Pre Action Protocol, such as the one used by Association of Contentious Trusts and Probate Lawyers. As members of that organisation, we comply with their code of practice.
David Wedgwood is a Partner at Anthony Gold. For further information email David Wedgwood or find out more about Anthony Gold's Contentious Probate & Trusts services.
