How To Fund A Contested Probate Claim

There is a growing trend of people litigating about contentious probate matters which may be fuelled by increasing values of estates (which mainly consist of properties), public awareness due to constant news in the media of probate disputes, and the wider availability of funding options to bring such claims.

Having a good case is only half the battle and many will fail simply due to the lack of funding, especially with the removal of legal aid in this area since April 2013.

These are some of the options for anyone considering bringing a contentious probate claim

1. Private

This is the traditional method of funding and is still largely how most cases will be funded. Prices will vary depending on locality, firm/solicitor instructed, complexity/value of the case and other factors.

Most solicitors will charge an hourly rate and require funds on account as the case progresses.

Some solicitors may be prepared to offer fixed fee for stages or the whole case.

2. Deferred

This is a variation of private paying. The difference being that some solicitors may bill you as they go along but be prepared to wait for payment of the outstanding bills until after conclusion of the case.

They may charge you interest for the deferment and/or seek security for their costs over any assets you own or is owned by the estate.

This is only likely to be offered if the solicitor is sure that they will get payment regardless of the outcome of the case.

3. Legal Expense Insurance

If you have the benefit of this type of insurance (which is usually an add on to motor and/or home/contents or even as a benefit to some paid bank accounts), then depending on the terms of the policy, they may cover legal fees in these types of disputes.

Some policies will dictate that you use their panel solicitors (as they have preferential rates) and others may allow you to choose your own solicitors if they agree to the insurers’ term and conditions (including agreeing a lower charge out rate).

Once court proceedings are being issued though, you have a right to choose your own solicitor.

Some solicitors may ask you to top up to their normal charging rate if the rate being indemnified by the insurers is lower than their usual rates.

There is a limit to the indemnity provided by the insurers (between £50,000 and £100,000 is standard) which has to cover all your legal costs and disbursements as well as the other side’s legal costs and disbursements.

There are standard terms required from both the client and the solicitors such as regular updates and authority before certain steps can be taken. They can withdraw funding in certain circumstances or if the merits fall below a certain percentage.

4. Third Party Funding

There are now some companies who are prepared to provide funding for these type of cases. They will pay your legal costs and disbursements as the case goes along or require the solicitors to enter into a Conditional Fee Agreement (see below) for all or some of their costs, so the risk is shared with them.

In return for funding they will require payment on conclusion either as a percentage or ratio of monies recovered or the total amount of costs expended.

Like with Legal Expense Insurance there will be terms and conditions that both the client and solicitors will be subject to.

5. Conditional Fee Agreements (“CFA”)

These are traditionally referred to as ‘No Win No Fee’ arrangements – if you lose you will not be obliged to pay the solicitors costs.

If you win, the solicitors will recover most of their costs from the other side save they will seek to recover from any monies recovered for you the following:

a) A Success Fee (for taking the risk and not being paid until the end)
b) Any After the Event Insurance premium
c) Any costs not recovered from the other side

The Success Fee is normally set as a percentage of the solicitors’ total costs incurred in the matter.

Solicitors may apply a cap to how much will be deducted from monies recovered so as to guarantee you a minimum amount you can expect to recover.

Most solicitors will also advise you to obtain After the Event (“ATE”) Insurance in addition to having a CFA as this will cover your disbursements and the other side’s costs including disbursements if you lose.

A solicitor (and insurer) will usually only provide funding under these arrangements if the merits are over 50/60%

6. Pro Bono/Free Advice

There are various organisations which offer initial or one-off advice for clients. These include the Citizens’ Advice Bureau, Law Centres and also some universities now run clinics (with solicitors) to offer advice.

The limitation of this is that it there is usually a long wait and only one-off advice/assistance will be provided so they cannot assist with running the case itself for you.

It may also be a good starting point for anyone who does not even know where to start in seeking advice and assistance and they can triage and point you in the right direction for further advice and assistance.

Recovery of Costs

Ultimately, the aim in bringing such a claim is recovery of monies and in addition for any costs expended to be reimbursed by the other side.

However, in most cases you never recover 100% of costs incurred from the other side even if you win.

There will always be an element of costs that you will have to meet either from your own pocket or as a deduction from any monies recovered.

This is an important consideration so you can make an informed decision on how far you want to take the case and whether costs are going to be proportionate

How to Find a Solicitor

You can contact the Law Society and use their Find a Solicitor service to find a local solicitor who may be able to assist.

The Association of Contentious Trust and Probate Specialists (“ACTAPS”) was founded in September 1997 for lawyers specialising in trust and probate work.

You can find a specialist lawyer from their list of members. Members have to be substantially engaged in contentious trust and probate law and practice.

Personal recommendation, testimonials and professional endorsement can help you find the right solicitor.

Final Words

Litigation is stressful and in contentious probate claims you have the added elements of emotions running high and potentially acrimonious relations between family members.

Whilst it is not essential that you have a solicitor to bring or defend a contentious probate claim, having a good one could make the difference between winning/losing or getting the right outcome.

Finding a good solicitor is key but so is finding the right funding solution. Litigation is costly and can take a very long time so you need to know how you will be able to take the case all the way to resolution.

If you need advice on bringing or defending a contentious probate claim, contact our experienced Dispute Resolution legal team for clear, practical guidance on your best funding options. Call 0330 822 3451 or request a callback.