Step 5: Issuing Proceedings
Wills and Probate
If the parties fail to reach a settlement following the mediation and pre-action protocol attempts, the claimant will need to decide whether to issue court proceedings.
Matters for the claimant to consider:
1. Proportionality and Funding
Before issuing court proceedings, a claimant should analyse carefully whether the likely costs of pursuing the claim will outweigh the value of the claim itself. On many occasions, the legal costs of the claim can become disproportionate to the amount in dispute and thus, even if the claimant is successful, his/her ultimate gain will be significantly reduced.
Moreover, a claimant should also be aware that any unsuccessful legal action is likely to make the Court order the payment of the winner’s costs of litigation in addition to the loser’s own costs. In other words, the losing party will have to pay all the solicitors and barristers, expert witnesses and all their expenses (even though the losing party herself has not employed a legal representative).
Finally, a claimant should consider the potential funding options when contesting a will. These can take the form of:
If a solicitor or legal adviser is retained: a conditional fee agreement, advertised as ‘no-win no-fee’ arrangements, where you pay no fee if you lose but if you win, your lawyer will recover their standard fees and possibly a success fee from either the estate or the other side;
Legal Expenses Insurance (LEI) and After the Event Insurance (ATE) are more rare in probate claims.
2. No-Contest Clauses
Another important issue that the claimant should check when deciding to challenge a will is whether the will contains a ‘no-contest’ (or forfeiture) clause. A no-contest clause is designed to discourage beneficiaries who have been named and provided for in the will from contesting the will because they believe that they have not been sufficiently provided for by the deceased. Thus, the clause usually states that a beneficiary who decides to challenge the will forfeits his/her inheritance provided under the will.
In this case, the risk of starting a claim can be great: If the challenge to the will is successful, the beneficiary will receive the amount requested in their claim. However, if the challenge is unsuccessful, the beneficiary will lose his/her entire legacy under the will.
Types of Potential Claims:
A claimant can make a claim on the following bases:
A. Validity of a will (a ‘Probate claim’ within the meaning of the Civil Procedure Rules)(1)
A will’s validity can be challenged on several grounds:
i. Non-compliance with formalities
A will is valid as long as it complies with specific formal requirements. If any of the formalities below are not satisfied, the will may be found invalid.
The will has to be:
Signed by the testator (i.e. the person making the will);
In the presence of two witnesses, who are not beneficiaries and who must be present at the same time, and
The witnesses must then sign the will.
ii. Incapacity/lack of testamentary capacity of the testator
If a will appears reasonable in all respects, the presumption is that the testator had the required mental capacity and the will is admitted to probate. Anyone who wishes to ‘rebut’ or, in other words, to challenge this presumption must produce sufficient evidence to the contrary. If the testator is found not to have the required mental capacity for making the will, then the will is declared invalid.
Testamentary capacity requires that the testator was “of sound mind” at the time the will was signed. If the testator made decisions that he/she would not have made if he/she were healthier, that could suffice to trigger an incapacity claim. Examples include that the testator did not understand the nature or importance of the signed document (that it was indeed a will and that it had the function of disposing of property) or that he/she made decisions due to confusion or misjudgment. Parties relying on this ground are required to present medical and witness evidence to substantiate their claim.
It should be noted that a previous will (if it existed) may take effect instead of the invalid will, unless it can be demonstrated that:
(a) the previous will was revoked by the testator regardless of the validity of the subsequent will,
(b) the testator married since the previous will was made.
If there is no applicable previous will, the estate will be administered in accordance with the Intestacy Rules(2) .
iii. Lack of knowledge and approval by the testator
This ground is similar in some ways to the incapacity ground. In some cases, the testator may not have knowledge of the extent of his/her estate or may not understand the legal consequences of making a will. This ground is generally more difficult to corroborate unless it is also connected to the uncertain mental capacity of the testator.
iv. Undue influence or fraudulent calumny
A will can look suspicious if it has been changed or renewed in order to offer a large part of the estate to a person who is in a position of trust with the testator. As the majority of testators tend to be part of an ageing population, caution needs to be exercised, as they can be more vulnerable to the undue influence and coercions of family members or carers. The testator need not have suffered from mental incapacity – here, any proof of manipulation, intimidation or dishonesty that pressures the testator to change the content of the will is sufficient to revoke the will.
A claim based on fraudulent calumny will arise when the person close to the testator gives the testator false evidence with the purpose that the testator changes the content of the will.
v. Forged will
A will is also invalid if it has been prepared by a beneficiary who forged the signature of the testator either before or after their death. A handwriting expert would need to provide evidence in this type of claim.
B. Inheritance Act claims(3)
A person is eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975(4) if he/she has not been sufficiently provided for by the deceased’s estate (whether through the will or the laws of intestacy) and he/she is either:
The spouse/civil partner of the deceased
A former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership
A child (or an adopted child) of the deceased
Any child treated as a child of the family in relation to the marriage by the deceased (e.g. a step-child)
Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased
If the deceased died on or after 1 January 1996, any person who has been living for a period of 2 years or more ending immediately before the death of the deceased in the same household as the deceased and as the husband or wife of the deceased, or
Any person who has been living for a period of 2 years or more ending immediately before the death of the deceased in the same household as the deceased and as the civil partner of the deceased.
This Act stipulates that a claim for ‘reasonable financial provision’ by a spouse is not limited to maintenance, but claims made by everyone else will be. In an application by a surviving spouse, the Court will look specifically at the age of the spouse and duration of the marriage and the contribution made by the spouse to the welfare of the family of the deceased (such as looking after the home and caring for the family).
In all other cases, the Court will consider the following factors in making an order for reasonable financial provision(5):
The financial resources and financial needs which the applicant or beneficiary of the estate has or is likely to have in the foreseeable future;
Any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
The size and nature of the net estate of the deceased;
Any physical or mental disability of any applicant or beneficiary of the estate of the deceased;
Any other matter that the court may consider relevant.
C. Promissory or proprietary estoppel
A person may enforce a promise made by the deceased during his lifetime if it is not satisfied in the will and the person has relied on it and acted upon that promise. The claim can be based on a promissory estoppel (a promise for a sum of money or non-specific benefit) or proprietary estoppel (a promise for property or land).
There are 3 key requirements that need to be complied with:
A promise was made during the testator’s lifetime
The promise was relied upon by the person to whom it was made (the promisee), and
That reliance has resulted in detriment or loss to the promisee.
D. Claims for the removal or substitution of Personal Representatives(6)
Sometimes, the personal representative of an estate is not acting in the best interests of the estate and its beneficiaries. Examples include acting negligently, not providing sufficient information to beneficiaries, not paying debts and taxes or not distributing assets correctly. In such cases, it is possible to apply to the Court to remove the PR or to appoint a judicial trustee.
Where the actions of the PR have led the trust or estate to suffer a loss, the PR can also be personally liable for mishandling of assets or improper management of the estate.
E. Rectification of Wills(7)
A court may order that the will is rectified so as to carry out the testator’s intentions if the will, as expressed in the current form, fails to do that. The only grounds taken into account are clerical errors or evidence of a failure to understand the testator’s instructions(8) .
The application for such an order shall be made to a registrar, unless a probate action has already been commenced. The application must be supported by an affidavit made by the applicant (9) , explaining the grounds of the application, i.e. he must specify which of the 2 above-mentioned grounds are in issue and produce evidence regarding the testator’s intentions(10) .
Notice of this application must be given to all parties with an interest under the will and whose interest might be prejudiced by the rectification. The interested parties must make comments in writing, which will be attached to the affidavit in support of the application.
Filing the Claim Form:
A. In ‘Probate Claims’
The claim must be commenced in the relevant office and by using the procedure in Part 7 CPR(11). The claimant must use the special Probate Claim Form (N2) (12) and the particulars of claim must be supplemented by a sworn statement listing all the testamentary documents of which the claimant is aware (and if such documents are not in the claimant’s possession, stating the name and address of the person holding possession). The form of such an affidavit is annexed to Practice Direction 57 (Probate)(13). The claimant must also lodge the originals of those documents in the relevant office.
In addition, there are specific requirements regarding the content of the statements of case (14). The claim form must contain a statement by the claimant in which he/she explains his/her interest in the estate and the reasons for disputing any other party’s interest. If the claim is based on the invalidity of the will, the allegations must be set out “specifically” and supported by particulars of the facts and matters relied on.
B. In Inheritance Act Claims:
Claims under the Inheritance (Provision for Family and Dependants) Act are issued by way of a Part 8 claim (15) . The claimant must file with the claim form an official copy of the grant of probate or letters of administration and every testamentary document in respect of which probate or letters of administration was granted.
For additional guidance on procedural matters in all types of claims, please consult Practice Direction 57 (Probate) which supplements Part 57 of the Civil Procedure Rules: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57/pd_part57#IDAREG2.
Service of Documents
The general rule is that the court will serve the claim form, unless certain exceptions apply, and it is for the court to decide which method of service is used (16) . The main methods of service are first-class postal service and personal service.
If the claimant decides to serve the documents and does so by post, it is advisable that he/she obtains a certificate of posting from the Post Office in order to keep a record of when and where the document was posted. Personal service occurs when handing out the document to the person, at their home or some other place where they are known to be. This must be attested by an affidavit made by the person who served the documents (17) .
The claimant must remember to refer to everyone who must become a party to their case in the court documents and to serve documents (pleadings, affidavits, supporting evidence) on all of them. In probate claims, the court will generally ensure that all persons with any potential interest in the proceedings are joined as parties or served with notice (18) .
(1 )This is a “Probate Claim” governed by Part 57 (1)(a) of the Civil Procedure Rules: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#IV.
(2) As seen in ‘Talking it Through, the laws of intestacy are set out in the Administration of Estates Act 1925: http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/contents
(3) This is a claim governed by Part 57 (1)(d) of the Civil Procedure Rules (but not defined as a ‘probate claim’): https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#IV.
(4) Section 1(1) of the Inheritance (Provision for Family and Dependants) Act 1975: http://www.legislation.gov.uk/ukpga/1975/63
(5) Section 3 of the Inheritance Act 1975.
(6)This is a claim governed by Part 57 (13) of the Civil Procedure Rules (but also not in the category of ‘probate claims’): https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#IV.
(7) This is a claim governed by Part 57 (12) of the Civil Procedure Rules (but also not in the category of ‘probate claims’): https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#II
(8) Section 20 of Adminsitration of Justice Act 1982: http://www.legislation.gov.uk/ukpga/1982/53/section/20.
(9) A statement in writing made by swearing or affirming before a solicitor, which court rules allow to be used in some cases instead of having a witness come to court.
(10) See Rule 55 of The Non-Contentious Probate Rules 1987: https://consult.justice.gov.uk/digitalcommunications/draft-rules-in-relation-to-non-contentious-probate/supporting_documents/probaterules2013.pdf.
(11) Part 57.3 CPR. See Part 7 CPR on How to Start Proceedings – The Claim Form: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07.
(14) Part 57.7 CPR.
(16 )Section 6.4 of Part 6 CPR.
(17) For more details on service of documents, see Part 6 CPR: https://www.justice.gov.uk/courts/procedurerules/civil/rules/part06.
(18) Under Parts 18.7 and 19.8A CPR.