Many years ago, a fellow junior litigator and I were discussing our cases and supervisors. My friend had taken on a couple of Contentious Probate (contested wills) cases under the supervision of a general practitioner, and had soon realised, with no little trepidation, that the practice is vastly dissimilar to the standard litigation matters they were used to dealing with, and that without the help of with expert Counsel they would have been entirely out of their depth.
As time went on, their fear became palpable as they sought to explain the perpetually delayed responses to their grieving clients’ queries, battled to keep their targets in check while writing off reams of work as unchargeable, and ultimately skirted too close to at least one potential negligence claim for comfort. It was quite clear to me that Contentious Probate, practiced as it is alongside Trusts and Estates, is an entirely different beast to general litigation, and needs the focus and dedication of an expert.
A Different Beast
First, the law relating directly to the facts in these disputes is incredibly complex, relying on Equitable and Legal principles, as well as extensive case law and statutes. Of course, aside from the Equity points, this is not too far off a lot of litigious matters and a general litigator might think that they could have a stab at taking on these cases… how different could a probate dispute be from a contractual dispute, aside from the facts?!! Unfortunately for the unsuspecting practitioner, very! There are a whole host of other, unexpected, and hidden pitfalls. For example, issues about costs, including who should be responsible for paying costs, and orders that might be needed from court in that regard, might not be immediately apparent, but need early attention. Similarly, the duties and rights of executors and trustees affect issues from disclosure to the remedies available, and need considering as part of case planning. There are even particular rules relating to the Court in which Trust, Probate and Estate cases are heard. This is, of course, all to be considered while engaging sympathetically and supportively with clients in hugely emotional and distressing circumstances, at a time when they are often at their most vulnerable emotionally.
Once Seen Bitten, Twice Shy
For me, with Probate, Trust and Estate disputes, it was a case of once seen bitten, twice shy. However, I was fortunate enough to work with specialists who passed on their skills and expertise, and I was smitten with how interesting the practice is, and how much real and tangible benefit lawyers working in this area can give to their clients. In fact, now that I have made this my specialism, it is the difference that I make to my clients’ lives that I value the most.
In any case, I was very cautious as I developed a practice focusing on disputes relating to Probate, Trusts and Estates, including those arising in the Court of Protection, and I engaged in specialised training to ensure that I could properly navigate the complexities of my cases without relying on specialist counsel. Qualifying with and becoming a member of the Association of Contentious Trust and Probate Specialists (ACTAPS) was invaluable to me, and eventually I set up a dedicated team where I developed my practice further. Probate, Trusts, Estates and Court of Protection disputes are, therefore, my exclusive focus at Excello.
Mental Capacity
Another thing worth mentioning is that, while people are aware of Contentious Probate, Trusts and Estates disputes in general terms, there is less understanding of mental capacity and how it can affect legal proceedings. As well as matters that come before the Court of Protection (what decisions should be made on behalf of a vulnerable person and by whom, and disagreements about decisions made), if a party lacks mental capacity to give instructions to a solicitor, claims in the civil courts cannot proceed without the appointment of a litigation friend. As such, claims can grind to a halt, and the Court rules are not wholly transparent on the steps needed to get things moving again, as well as various other considerations that are peculiar to protected parties. Therefore, it’s important to obtain expert legal advice and assistance in relation to the legal ramifications of mental capacity more broadly, as well as in the context of Estates, and Probate and Trusts.
My Services
If you need help in any of these areas, please let me know. My specialisms are as follows:
- probate disputes including Inheritance Act claims
- breach of trust claims
- sham trusts
- conflicts in relation to the appointment and removal of trustees
- conflicts regarding the validity and construction of trust documents
- constructive trusts/resulting trusts
- contested Order 85/Beddoe application
- contested construction summonses/directions application
- disputes over the terms and validity of the wording of specific trust
- dispute resolution via trust
- disputes about whether or not a vulnerable person has the mental capacity to make decisions and manage their own affairs
- disagreements about who should make decisions on behalf of a vulnerable person
- disputes about what type of decisions should be made on a vulnerable person’s behalf
- disagreements over the way a vulnerable person’s affairs are being managed, by either an attorney or a deputy
