HOW TO PUT A CLAIM AGAINST AN ESTATE ?
The following are questions that we are frequently asked regarding contesting a Will.
There are a number of reasons why you might want to claim against an estate.
Some of the most common reasons for a claim against an estate are:
- Lack of mental capacity – the person did not know what they were doing in giving away their property.
- Non compliance – the person did not comply with the legal requirements for making a Will.
- Undue influence or fraudulent calumny – the person was coerced or pressured into making the Will – or someone lied to them to get them to change their Will.
- Inheritance Act claims – you feel that the person who died should have provided for you.
- Promissory / proprietary estoppel – the person made you a promise which you relied on to your detriment, and they didn’t follow it through.
Q: How do I claim against an estate?
Step 1: Establish grounds to make a claim
There are a wide range of grounds on which to make a claim and the best way to find out if your claim has merit is to seek legal advice from an experienced legal professional. You can find out more about the most common claims here. You may need to obtain a copy of the Will, if there was one, in order to fully consider whether you have grounds to make a claim. You should ask the Executors for this. If they refuse, your lawyer can write to them that failing to provide a copy of the Will could mean resolving the dispute takes longer, resulting in higher legal costs. If the claim goes to Court, the judge may take this into account when deciding who pays the legal fees.
Step 2: Check the time limits
You will need to ensure that you claim within the strict time limits.
Step 3: Consider entering a caveat
Sometimes your lawyer will recommend entering a caveat. This means that the Probate Registry will not be able to issue a grant of probate (if there is a Will) or letters of administration (if there is no Will). These documents are needed by the Executors/Personal Representatives of the Deceased to be able to distribute the Deceased’s assets. It is easier to claim against an estate where probate has not been granted and the assets have therefore not yet been distributed.
Step 4: Consider Alternative Dispute Resolution
You should consider whether using an Alternative Dispute Resolution (ADR) service to help you negotiate with the other parties involved. This can help settle the matter more quickly, thereby keeping the legal costs to a minimum. There are different ADR services available – these include:
- Discussion and negotiation
- Neutral evaluation of the claim by a third party
ADR services are not something you simply consider once and then dismiss. The parties might decide at any point during the process that it is worth trying ADR. One party’s refusal to even consider ADR could also potentially have consequences if the claim does go to Court and the Judge has to decide who will pay the legal costs.
Step 5: Follow the Pre Action Protocol
Although you have established that you have grounds for a claim, you would not normally issue the claim forms straight away, unless you urgently need to meet a time limit. Instead, you will need to follow the ‘Pre Action Protocol’. There is a Protocol for many different types of court claim and the aim is for the parties to exchange information so that the dispute can be dealt with quickly, cheaply – and ideally, without going to court.
For claims against the estate, the Association of Contentious Trust and Probate Specialists (ACTAPS) has produced recognised guidance on how to follow the Protocol, known as the ACTAPS Code. This can be downloaded from the ACTAPs website here.
The Protocol includes the following steps:
- A preliminary notice with details of the claim should be sent to all relevant parties (typically, the Executor(s) and Beneficiaries). This should be acknowledged within 21 days.
- Following an investigation of the claim, a Letter of Claim should be sent to all relevant parties which identifies the parties involved and the facts. This should include supporting documents where possible. The Letter of Claim should be acknowledged by a Letter of Response within 21 days.
- The relevant parties should send a Letter of Settlement (‘without prejudice’ – i.e. this will not be shown to the Courts) to the Claimant making a proposal for settlement or identifying what information will be required before a proposal will be made. Alternatively the parties may deny the entire claim.
- If the claim is denied entirely, the Claimant may decide to proceed with Court action. However, typically there will be a period of negotiation where the parties correspond with each other over the Claim. As noted above, ADR services can be very helpful in reaching a settlement at any stage of the process.
Step 6: Commence court proceedings
As noted above, if the Claim is denied by the relevant parties, the Claimant may have no choice but to commence court proceedings. This should be discussed with a legal professional experienced in this area of law, as there are a range of risks to take into consideration – including that you might be asked to pay both the Defendant’s legal costs and your own. You may wish to review our advice about funding a claim against an estate.
To issue Court proceedings, the first step is to prepare a claim form with the particulars of claim or witness statement. Typically, these are prepared by a specialist barrister who your solicitor will instruct on your behalf. The claim documents will be ‘served’ on the defendant(s) or their solicitors if authorised to accept service.
Once the claim form has been issued, there are a number of steps in the proceedings – these include disclosing documents, exchanging witness statements and obtaining expert evidence if necessary. It can take over a year to get to trial stage and as the parties continue to negotiate, quite often a settlement will be reached before then.
The Civil Procedure Rules govern all aspects of the process and it is strongly advisable to have an experienced lawyer guiding you at every step of the way. Failure to comply with the rules can affect the outcome of your claim and can also affect who pays the legal fees at the end of the case.