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12 March 2021 | Comment | Article by Roman Kubiak TEP

6 Reasons why you should instruct a specialist contentious probate solicitor

1. Early assessment of your case

Provided all the necessary information is available, a specialist should be able to assess that information quickly and be able to offer you practical advice as to the options available to you in your particular case. Some examples include:

  • Advising you to enter a caveat – This is a written notice which acts to prevent the grant from being issued in a deceased person’s estate. It may be necessary to enter into a caveat where there is any doubt over the validity of the deceased’s will, or if you believe that there may be a valid will where it is otherwise presumed that the deceased died intestate (i.e. without leaving a valid will). The caveat will act as an alert to all the probate registries not to issue a grant until the caveat is removed.
  • To enter into a standstill agreement – A limitation period is a statutory timeframe within which a claimant must commence a claim (the timeframe prescribed varies depending on the nature of the claim). In the event that the limitation period is due to expire but it is not yet possible to formulate the claim, it may be prudent to enter into a standstill agreement which has the effect of “freezing time” for the purposes of limitation. The parties will agree not to rely on the expiry of a limitation period until notice is given to restart the claim. This buys time for both parties to explore the quality of the claim or defence and could facilitate a resolution which in turn provides a saving on further time and costs potentially spent dealing with the matter at Court.
  • To enter into negotiations or issue proceedings.

If all the relevant information is not available, such as wills, grants of probate or medical records, a specialist should know exactly where to go to find that information as quickly as possible.

2. Detailed advice

Many specialist contentious probate solicitors will be members of organisations such as ACTAPS (the Association of Contentious Trusts and Probate Specialists), or of STEP (the Society of Trust and Estate Practitioners). ACTAPS membership demonstrates that a solicitor undertakes contentious probate work, and STEP membership demonstrates that a solicitor has particular expertise in the administration of trusts and estates, accounts and tax, which are all relevant in contentious probate cases. This allows clients to benefit from detailed and considered advice which might not be offered by those who lack the specialist knowledge and skills required to advise in this difficult area of the law.

3. Connections

Contentious probate cases are often very complex. If, for whatever reason, cases are unable to be resolved at an early stage, there may be a need for court proceedings to be issued. Whilst many specialists are capable of drafting court documents themselves, if the case is particularly complex or is expected to be highly contentious, it can often be sensible to instruct a barrister to prepare a claim to be issued at court. Specialist contentious probate solicitors will be well connected with numerous barristers and their clerks and should have the experience and connections to be able to tell which barrister may be suitable for a particular case. Matching a client to the correct barrister can be tricky, so knowing several can be helpful.

There are also other instances where connections can be helpful. Contentious probate cases often call for the involvement of accountants in order, for example, to trace estate assets. There can also be cases where it is tracing people that is the difficulty, and so tracing agents will need to be instructed. There can also often be a need, in cases involving an allegation of a lack of testamentary capacity, for the opinion of an expert in old age psychiatry to be obtained. True specialists will know who to go to in each of these cases.

4. Experience

No two contentious cases involving wills, trusts and estates are ever the same, but many will have similarities. Instructing a solicitor who specialises solely in contested trusts and estates cases means that the chances are that throughout their career, they have dealt with plenty of cases which have similarities to yours. This will enable them to give you the most appropriate advice to suit your case in a prompt manner, resulting in a lower cost to you.

Hugh James is delighted to have acted in many of the leading cases in the contentious probate field, including Davies & Another v. Davies (2016) EWCA Civ 463, Iqbal v. Ahmed [2011] EWCA Civ 900 and Re Edwards [2007] EWHC 1119 (Ch)). Having this wealth of experience within our team allows us to identify the issues quickly and, if necessary, pursue a matter all the way to trial; although for most clients, trial isn’t always the best option.

5. Settlement

A specialist contentious probate lawyer will have one eye on settlement from the outset of a matter. An out of court settlement carries a number of advantages, not least that it avoids the crippling costs, emotional trauma, as well as the risk, of taking a matter to trial. Offers of settlement can be made at any stage in a case; however, there are a number of more specialised forms of settlement (known as “alternative dispute resolution” or ADR) which might be suitable in any given case, for example:

  • Mediation: This is a form of settlement involving a neutral “mediator”, often a senior lawyer. Both parties and their legal representatives will sit in separate rooms. Offers are passed between the parties in the hope of reaching a settlement. Mediation affords flexibility that an order from the court simply can’t provide, which can hopefully lead to parties gaining a better understanding of each other’s positions.
  • Arbitration: This is another alternative form of resolving disputes where the parties will agree to appoint an arbitrator to who they will submit the dispute in question. The arbitrator will then come to a decision, which is final and binding. Arbitration proceedings offer more privacy and confidentiality than usual court proceedings, with all parties being subject to duties of confidentiality.

6. Peace of mind

Contesting a trust or estate can be a daunting concept to many, whether it be from the complexities of the law or the emotional stresses that come with it. Whilst contesting a will or trust might be unfamiliar ground for you, a specialist contentious probate solicitor will deal with this type of work daily. By instructing a specialist, the weight can be taken off your shoulders and you can take comfort in the knowledge that your affairs are in safe hands.

Will challenges and claims over estates are never straight forward and require careful consideration from an early stage in order to ensure that the interests of various parties are protected.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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