Have you been denied your
inheritance because of an unfair Will?

This is one of the first questions that every client asks and this is the central issue of litigation if you are entitled to make a claim. The question can of course be answered but not always at the first conference.

However, by the time it comes to you mediating your claim to see if the litigation can be settled without going to Court, both CharterLaw and your barrister will be able to give you our estimated value of your claim. We will also be able to explain the basis of our estimate, having regard to a variety of matters including:

• How long you knew the deceased;
• The nature of your relationship and conduct towards the deceased;
• Evidence as to why the deceased decided to disadvantage you in their will;
• Whether, during their lifetime, the deceased had provided financial or other assistance to you;
• Whether the deceased owed you a special obligation or duty as at the date of death;
• The financial worth of the Estate and other claims being made on the Estate;
• Your current and future personal financial circumstances;
• Whether you have dependants or others who you support;
• Your age and your physical, mental or intellectual health;
• Whether you financially assisted or otherwise assisted or contributed to the deceased’s welfare;
• Evidence of why your inheritance is insufficient and why you are entitled to more; and
• Any other matter the Court considers important that is not listed above.

Subject to:

• CharterLaw forming the view that your claim has sufficient prospects of success; and
• your financial position and circumstances, we will explain to you our success fee deferral payment plan

If you agree to proceed with CharterLaw on the basis of our success fee deferral payment plan, then this means that our professional costs and our barristers costs (but not any expenses such as court filing fees etc payable to third parties) will be deferred and not payable until you receive a successful result with respect to your claim.

We will then set out our professional fees, our success fee uplift and our deferral payment option in our detailed cost agreement which we will issue to you prior to commencing any work. This ensures that you are fully informed of all of your responsibilities (and ours) prior to committing to our services.

When you make a claim for financial provision, you make the claim against the executor of the Estate, who is ultimate decision maker for the Estate. Whilst the executor may also be a beneficiary and, along with other beneficiaries, may wish to reject your claim because it reduces their entitlement, the law controls executors by imposing on them the strict obligations of a trustee.

These obligations include the duty to avoid a conflict of interest and not to profit from a conflict of duty. If an executor is also a beneficiary, then the deceased has put the executor into a position of unavoidable conflict. As such, the law will prevent an executor from pursuing their own personal interests (or the interests of people close to them) over your entitlement as a lawful claimant.

Unhappiness and conflict sometimes test human nature and can result in a claimant and an executor becoming too combative. Whilst we will fight hard to advance your legal and financial interests and will not allow you to be bullied, we will not, as professional lawyers, engage in unnecessary confrontation whilst we act for you. Not only will this hinder your prospects of achieving a timely and sensible outcome but it will add avoidable cost and delay. It can also have a negative impact on your case because the Court actively discourages executors and claimants from being unnecessarily confrontational and adversarial.

Litigation does not happen that quickly and there is a 4 staged procedure that must be followed which, very briefly, involves the following:

• Stage 1 can take 4 to 6 weeks and involves you preparing your summons and evidence, filing your summons in Court and serving your summons and evidence on the executor;
• Stage 2 starts about a month after you file your summons and takes some 4 to 6 weeks. It involves the Court directing the executor to prepare and serve a response to your claim and for both parties to then approach the Court for further directions.
• Stage 3 can take 4 to 8 weeks and commences when the Court gives directions for compulsory mediation. (potential settlement stage discussed below). If the litigation does not settle at mediation, the case heads back to Court for a hearing date; and
• Stage 4 can take 3 to 9 months or more (depends on Court availability) and commences when the Court allocates a hearing date. It involves us and the barrister preparing your case for trial. After the trial is concluded, there will be further delay until the Court hands down it written judgment.

The answer is yes. If your claim is a large claim, it may take longer because larger claims are more complex and there is more work to be undertaken. It is not unusual for large claims to be more robustly defended by executors because of the impact that they have on the Estate. Furthermore, your claim can be delayed for any number of reasons outside your (and our) control including the following:

• If additional claims are made on the executor, then all claims are usually dealt with together;
• If there are doubts concerning the deceased’s capacity to make the will. These will have to be dealt with first because the deceased’s will may be null and void if, for example, the deceased had dementia when the will was made;
• the Grant of Probate is complicated or delayed or if the administration of the Estate is delayed;
• the executor is uncooperative or unresponsive in dealing with the litigation.

Around 90% of family provision claims are settled without the need to go to trial. It is rare for a family provision claim to settle without litigation being commenced.

In order to limit valuable time being lost and costs incurred, our normal approach is to notify the executor of your claim and then undertake Stage 1 (preparation of your summons and evidence). Once prepared, we send it to the executor accompanied by a demand that the Estate make you a provision (i.e. pays your claim) otherwise you will file the summons and the formal litigation will commence with 7 days. Sometimes the executor responds sensibly and a settlement can be negotiated. However, often the matter does not settle so easily and we a required to file the summons and serve it and your evidence on the executor.

Most family provision claims only settle during Stage 3 of the litigation process because the law requires that an executor take steps to protect the assets of the Estate and this requires the executor to be both cautious and conservative in dealing with Estate assets.

Stage 1 of the litigation process allows the executor to understand the nature and extent of your family provision claim. It also allows the executor to take legal advice. Whilst all decisions must be made by the executor (and not by lawyers or other beneficiaries), executors invariably accept this initial legal advice and will commence stage 2 of the litigation process by:

• initially reject your claim outright on the basis that you have no entitlement; and/or
• initially resist or oppose your claim in order reduce the extent of your entitlement.

During Stage 2 the Executor prepares evidence required to reject or to oppose your claim. It is only after you receive the executor’s evidence that the Court will order compulsory mediation. It is during Stage 3 of the litigation process that the parties work out whether they can reach a sensible settlement.

The Court strongly prefers and encourages parties settle family provision claims. Settlement of your claim is likely to occur at the mediation (but not guaranteed) if all of the following factors are present:

• we have advised that your claim has been properly and carefully prepared;
• we have advised that you have a sound and credible claim;
• we have advised you that you have reasonable prospects of winning the case before a judge;
• the litigation process has been conducted in a non-confrontational manner.
• we and our barrister have advised you as to the amount of your financial entitlement based on your particular facts and on how other cases, whose circumstances are similar to yours, have been previously decided by the Court and the reasons why we recommend such amount; and
• you sensibly accept and act on this advice.

If your claim does not settle at mediation, this indicates that the executor has formed the view (and has been advised by the estate lawyers) that either:

• your claim lacks merit such that you have no entitlement or alternatively;
• your claim has merit, however the amount you are seeking is excessive.

Whilst this does not prevent your case from settling prior to the commencement of the hearing, especially if you and the executor are flexible in resolving the amount that should be paid to you, it does mean that

Stage 4 of the litigation process will commence and unless the litigation is resolved before the commencement of the trial, your claim will be determined by the Court.