Contesting a will with a 'no win no fee' agreement

Contesting a Will With a “No Win No Fee” Agreement

Introduction Contesting a Will can seem like a daunting process. Whatever your reasons for contesting this legally bound document, it is vital that you liaise with the appropriate bodies, ensuring you receive the best guidance and advice whilst you move forward with your case for contesting probate.

Before you can proceed with any claim, you will need to ensure you have grounds in which to first make your claim, then uphold it in a court setting. The merits of each claim can be incredibly different from one case to the next, and the length of time a case can span will also vary considerably. Consequently, it is of paramount importance that you have in place the appropriate capital or funding to see you through your individual claims process.

Working alongside an experienced solicitor is arguably the most efficient way to contest a Will, but with Legal Aid now only being offered in specific circumstances, for specific areas of law, how else do you seek justice, without running in to debt? The famous quote from judge Sir James Mathew that stated “in England, justice is open to all – like the Ritz hotel” rang in the ears of many for a long time.

However, in the modern age, we understand the law is not only on the side of those that can afford to enforce it, and within the e-book you will find information on the popular solution for many court claims that is a “no win no fee” arrangement, specifically connected to cases of contested probate.

What is a No Win No Fee Agreement?

First and foremost, it is essential that you understand the premise of a no win no fee arrangement, before deciding whether this avenue for funding your legal claim is beneficial for you.

According to the Cambridge dictionary, a no win no fee agreement is “used to describe an arrangement between a lawyer and a client in which the lawyer gets paid only if he or she achieves a satisfactory result for the client”. Therefore, you, the claimant, will only be expected to pay your solicitors fees should the case you are pursuing be decided in your favour.

Many people associate no win no fee settlements with accident and injury claims, however, such agreements can also be used to settle a wide variety of cases in other areas of law, including contesting a Will. Although many solicitors in the UK offer a variety of funding options, it is essential to be aware that not every solicitor will offer a no win no fee arrangement, and that such an agreement will be put in place depending on the specifics of the case, and its estimated likelihood of success.

Conditional Fee Agreements It is vital that the terms of your no win no fee agreement are fully comprehended, before you proceed with your case, avoiding the potential for later unexpected charges to come to light that you will hold the responsibility of paying.

The most common form of no win no fee agreement, is the Conditional Fee Agreement.

Under a CFA, the following points apply: 

Alongside the client, the appointed lawyer or lawyers share the risk of losing the case, meaning no monies will be paid to the acting lawyer(s) for any work they have carried out



should the case be decided in favour of the defendant.

If your claim is unsuccessful, any other expenses you agreed to pay including: court costs,



expert’s charges and any other miscellaneous expenses will be due to be paid by you Lawyers will typically charge what is called a “success fee” if a case is settled in favour of



their client, on top of any normal fees that would apply Success fees are intended to compensate lawyers for undertaking a CFA case where they risk



not being paid for their time or work Success fees are meant to reflect the risk of taking on a case, and will be lower if the case is settled early, or as high as 100% of the base cost in some cases

No lawyer is bound by any statue to take on a case under a Conditional Fee Agreement, and cases will often be accepted by lawyers based on the specific merits of the case, and the level of success fee attributed to the case.

Forward planning and an organised strategy are two key points that need to be executed for any court case. Although your appointed legal team will do their upmost to ensure your case is settled in your favour, it is vital to consider the costs you will face should your case be settled in favour of the defendant. Many Lawyers will request that their clients take out an After The Event (ATE) insurance policy. If an ATE insurance policy is in place, the person’s liability to pay the costs of another party to the litigation are underwritten.

Damages-Based Agreements Damages Based Agreements are another form of no win no fee policy that may be set up on behalf of the client, aiding a legal claim to be pushed forward, when upfront funding is not available. As is the case with CFA’s, a Damages Based Agreement offers a way of funding a variety of civil litigation and commercial claims.

Under a DBA, the following points apply:

 

Alongside the client, the appointed lawyer or lawyers share the risk of losing the case The fees payable by the client depend on the success criteria outlined when entering in to



the agreement The Damages-Based Agreements Regulations 2013 set out the maximum percentage a lawyer can claim from the damages their client receives, depending on the type of case being handled: 25% - Personal injury claim 35% - Employment tribunal cases 50% - All other cases

Since the introduction of both Conditional Fee Agreements and Damages Based Agreements, multiple reforms have taken place to these policies, however, the stated facts and figures are correct as of May 31st 2016 – House of Commons.

Finding Your Solicitor Pursuing a legal claim can be intimidating, however, finding the right solicitor that can empathise with both your legal and personal circumstances can go a long way in providing you with the necessary assurance that your claim is being handled in the most efficient way.

There are a variety of online services that allow those seeking a solicitor to search for representation by algorithms based on location and area of law. The Law Society is an organisation that represents solicitors in England and Wales and is a great place to start your search. The search tool governed by The Law Society will allow you to narrow down the search results presented to you by those that have been accredited for various areas of law. Further to this, should you wish to search for legal practitioners with a specific accreditation, you can use the “pro search” option to aid you with this.

When going through a contest probate claim, you are likely to face a variety of stresses, not least those linked to settling your funding options. To give you further peace of mind, The Law Society are governed by their own practice management standard named Lexcel, a mark that stands for excellence in legal practice management and excellence in client care.

Any legal practice can apply for Lexcel membership, regardless of their size, or the area of law specialised in. Lexcel membership demonstrates a commitment on behalf of a law firm or independent practitioner to consistently provide services that are in line with client expectation.

Lexcel provides a flexible management framework, giving you the peace of mind that those handling your case are governed by the high standards that are outlined for the following categories:   

Structure and strategy Financial management Client care

   

People management Information management Risk management File and case management

When contesting a Will, you are likely to need continued guidance and advice from your appointed solicitor. Consequently, liaising with a solicitor that is based in a location that is easily accessible to you should remain a top priority.

Further Accreditation Contest probate is a very niche area of specialised law, to help you find the right legal specialist to help you with your requirements, you may wish to search for members of the Association of Contentious Trust and Probate Specialists (ACTAPS).

ACTAPS Overview To achieve full ACTAPS membership, your qualified solicitor must have undertaken a three year course, or a two year fast track course of the same merit, structured around five core modules including:     

Probate Actions Mental Capacity Inheritance Act Claims Trust Actions Sham Trusts/Asset Tracing

Alongside this, Alternative Dispute Resolution is included as an additional area of study in the final year.

The ACTAPS website will provide you with a comprehensive list of accredited members.

What Will Happen When I Meet My Solicitor?

If you wish to proceed with your claim under a no win no fee agreement, an initial consultation with your chosen solicitor will need to take place. Typically, your solicitor will discuss each aspect of your claim, right down to the minute details, as it is such information that can affect the outcome of your case.

Your solicitor is under no obligation to take on your case under a no win no fee arrangement, and will only agree to take on your case if they are nearly 100% sure your case will be resolved in your favour.

If your chosen solicitor agrees to take on your case under a no win no fee agreement, they will explain all details of the arrangement you are setting up, outlining any fees you will be expected to pay, whether the case should be decided in your favour or not.

For your records, it is essential that you keep your copy of the no win no fee agreement you are entering in to safe, ensuring you can refer to it, should any discrepancies occur later down the line.

Time Frames There is no time limit by which you can employ a no win no fee agreement to see you through civil litigation, however, time limits may be attached to the type of claim you are making. For example, an injury claim can only usually be made within three years after the accident has taken place.

When contesting a Will, the time you must make your claim by will vary, depending on the specifics of the case, although it is always highly advisable that you seek legal help as soon as possible.

Nature of Case

Time Limit

Fraud

No time limit applies

Claim for Maintenance

Six months from the grant of probate

Beneficiary making a claim against

Twelve months from the date of death

an estate Your appointed solicitor will be able to guide you through the contesting a Will process and advise you on the particular time limits that apply to you.

What About Legal Aid? Legal Aid was introduced in 1949 as a principle feature of the welfare state. During its introduction, Legal Aid was available to 80% of the British people.

Being introduced for those cannot afford to pay their own legal costs, Legal Aid can cover debts that are incurred when seeking legal advice, representation in court, and family mediation. However, this type of funding has gone through a variety of reforms, and in 2008 eligibility dropped to just 29%.

The eligibility for Legal Aid is entirely dependent on the nature of the case, and the financial circumstances of the individual applying for financial assistance. Legal Aid funding is no longer available for contest probate cases. However, you may be able to seek free advice from public services, including; Citizens Advice, Advice Now and The Law Centres Network.

Grounds to Contest a Will

The death of a loved one is a difficult process, however matters can often be made worse when there is doubt over the legitimacy of the Will in place. Whether you are funding your own case or have been accepted to make your case under a no win no fee agreement, it is of great importance that you understand on what grounds you wish to contest.

There are several reasons for which one can contest probate, and in order for your case to be upstanding in a court setting, you will need to be able to prove one or more of the following: Lack of Testamentary Capacity Referring to a circumstance where the deceased was not of sound mind when they drew up the contents of their Will, lack of testamentary capacity may apply if the deceased was suffering from an illness that affected their mind. Further to this, you may also be able to make a claim under such a statute if the deceased was not able to comprehend the value or nature of their estate, or did not understand the effect of the document (Will) they were drawing up. Arguments under lack of testamentary capacity may also be put forward if evidence comes to light that the deceased did not understand the consequences of including or excluding certain people within their Will.

Contest Probate claims are always sensitive cases to handle. However, when cases are made under lack of testamentary capacity, they often incur a great deal of stress for the beneficiaries of the Will that believe they understood the deceased’s true wishes for after their passing.

Undue Influence Under no circumstances should an individual be influenced, coerced or under duress when drawing up their Will. If you make a claim under the category of undue influence, you must be able to prove that suspicious circumstances were in hand, and that the testator would not have drawn up their Will in such a way, should external influences not have been at hand.

Fraud or Forged Wills The Oxford English dictionary defines fraud as “wrongful or criminal deception intended to result in financial or personal gain”. If an individual deliberately deceives the testator (person whose Will it is) in order to have someone else removed from the Will for their own financial gain, this may be classified as fraud.

Forgery is defined in the same dictionary as “the action of forging a copy or imitation of a document, signature, banknote, or work of art”.

If evidence can be proved that acts of fraud or forgery have taken place, you will have grounds by which to contest a Will. Seeking legal help will ensure you benefit from receiving guidance and advice from specialists in this niche area of law, ensuring you can uncover all acts of fraud and/or forgery that have taken place, and take the correct steps in making a claim and putting this right.

Lack of Due Execution A Will must meet a wide variety of requirements in order for it to be deemed valid under the law by which you are governed. If a Will has not been executed in a way that meets the criteria to make it valid in the eyes of the law, a case may be put forward to contest probate under lack of due execution.

The Wills act of 1837 states that a Will must adhere to the following:  

First and foremost, the Will must be understood to be legally valid The Will must be in written form (no other form of Will is legally valid) and signed by the



testator or someone that has been appointed by the testator to do so Two witnesses must sign the Will in the presence of the testator (but not necessarily in the



presence of each other) The testator must sign their own Will in the presence of the two appointed witnesses (if only



one witness was present, the Will has not been validly executed) The signature of the testator must appear to give effect to the Will

For many people, filing a claim under lack of due execution can seem daunting. When you are unsure what is deemed valid in the eyes of the law, making a claim that challenges the legal processes surrounding a Will may often seem like an almighty task.

Just as your financial circumstances should not dictate whether or not you can move forward with a valid claim, uncertainty shouldn’t be an influencing factor when it comes to seeking justice for a loved one. Under a no win no fee agreement, you will have the on hand guidance of a qualified specialist in the area of contest probate law, and have the freedom to move forward with your case, without the fear of facing costly legal fees.

Professional Negligence No one is above making mistakes. However, when you believe you have entrusted your loved ones Will to the hands of professionals, it is devastating to find out that professional negligence dictates the wishes of the deceased cannot be carried out.

Clerical errors, or ambiguity in the lexis used in the Will may all give appropriate grounds for making a claim under professional negligence.

Lack of Knowledge It is commonly mistaken that a claim under lack of knowledge can only be made if the deceased was suffering from an illness of the mind that affected their decision making. However, lack of knowledge claims may be put forward if it is believed that the testator did not comprehend the contents of the Will they had signed, or suspicious circumstances surround the Will which creates grounds to believe that the deceased had lack of knowledge over the contents of the Will they gave permission to be put in place by their signature.

If you believe you have grounds to make a claim under one or more of the above categories, it is vital that you get in touch with a specialist solicitor with immediate effect.

Is No Win No Fee for You? Since the reforms regarding Legal Aid significantly reducing the eligibility for those that can apply, the responsibility of funding legal services has begun to make a shift from state provision to commercial funding options. Consequently, there are multiple ways to pay for the help you require when legal challenges arise, including directly marketed options such as no win no fee agreements.

The no win no fee model has been endorsed by the government and praised by many as a fair way for those that may otherwise not be able to access legal services to seek the justice they may be entitled to. The legal ombudsman stated that such agreements “are to be welcomed”, and after the success of CFA’s, the government introduced the DBA which allows lawyers to take a percentage of the damages won as payment.

However, it should be noted that no win no fee agreements have not been without their issues, and it is always of paramount importance to read and fully understand the fine print of any agreement entered in to.

The legal ombudsman produced a report in 2013 stating that it felt the terms used in a no win no fee agreement are often misleading and the documents given to the consumer are “complex”, leading to multiple complaints being received.

It has since been concluded that it is the responsibility of the solicitor employed to handle the claim to explain each points of the agreement they are making with their client, with a “particular obligation to highlight the potential risks.”

No Win No Fee Concluded

Of course, it goes without saying that the increased popularity of such agreements demonstrates the fact that the legal profession has become a lot more connected with the consumer, making such services seem a lot more accessible and a lot less daunting to those seeking help with the legal challenges they face.

Contest probate cases can take a wide variety of avenues, represented by the vast difference in time such cases can span. Factors that include, whether or not a Will was put in to place at the time of death, and whether or not all steps have been followed to make the Will legally valid in the eyes of the law, will have a significant impact on the processes that need to be undertaken in order to successfully contest probate.

Greater consistency and improved standards are proposed by the legal ombudsman, by way of standardising due care on behalf of all law firms and universalising CFA and DBA contracts.

To make a firm decision on whether pursuing a legal claim under a no win no fee agreement is beneficial, an individual should ensure they fully comprehend the following:    

Aspects covered by the agreement Aspects not covered by the agreement What payment is due if they win their case and how it will be paid What expenses and disbursements are payable if the case is lost and how it should be payable

It is beneficial to both the acting lawyer and the client that any complaints regarding no win no fee contracts are handled competently. After an initial discussion with your acting solicitor, you should be well informed of your funding options and the next steps you will need to take in order to continue with your contest probate claim.