“Probate: Perils & Pitfalls” – the 10th Newcastle B&PC Forum Event, 12 October 2020

The 10th B&PC Forum event will take place on 12^th October 2020, and will be hosted on ZOOM.

We are looking forward to seeing you there. The event details and booking link are below.

Date and Time

Mon, 12^th October 2020. 17:00 – 19:00 BST

Speakers

His Honour Judge Philip Kramer – “Basic contentious probate for beginners”
Emma Saunders, Sintons – “Wills: protecting your client and your firm”
Stephanie Jarron, Enterprise Chambers – “Proprietary Estoppel claims and Farmers”

Location

The talk will be broadcast online.
Details will be posted to attendees closer to the event date.

Booking

Tickets for this event are free. Registration will only be used to notify you of any event changes, and for catering and capacity-planning purposes only.

BASIC CONTENTIOUS PROBATE FOR BEGINNERS

Notes from a talk given to the Newcastle Business and Property Courts Forum on 12^th  October 2020.

1. Practitioner Texts:
   1.  Tristram and Coote’s Probate Practice (31^st Ed, 31^st 2018)- £690 but has statutory materials and forms
   1. Williams Mortimer and Sunnucks-Executors, Administrators and Probate (21^st Ed, 2018)-£348-it covers a wider area but does not have the statutory materials or forms
   1. A Practitioner’s Guide to Probate Disputes-Nasreen Pearce (2016)-£69, a good basic guide to the law of wills and contentious probate. The appendix has useful statutory materials, precedents and the Association of Contentious Trust and Probate Specialists (ACPTAS) Practice Guidance for the Resolution of Probate and Trust Disputes (the ACTAPS Code)  The Code and other useful information can be found on the Association’s website at https://actaps.com (address as at October 2020)
2. Essential Reading:
   1. CPR part 57 Section 1
   1. CPR PD57A Part 1

Also recommended Paragraphs 27.47 to 27.58 of the Chancery Guide.

• What is a grant of probate and what is a contentious probate?
  • A grant of probate is conclusive  as to the appointment of the executor, or administrator if the will is proved by someone other than the executor,  and of the validity and the contents of the will. The grant entitles the grantee to act as the personal representative of the estate of the deceased. This gives the grantee the title to get in the assets of the deceased, settle the affairs of the estate and distribute the estate in accordance with the Will.
  • Grants can be made in common form and solemn form. The former are obtained from the Probate Registry which is a part of the High Court Family Division. The business of the registry is governed by the Non- Contentious Probate Rules 1987. Non- contentious or common form, business is assigned to the Family Division. Other probate business is assigned to the Chancery Division; see the Senior Courts Act 1981 s.61 and Sch 1 para 1 and para 3 and CPR 57.2.
  • S.128 of the Senior Courts Act 1981 defines non-contentious or common form business as:

“the business of obtaining probate and administration where there is no contention as to the right thereto, including—

(a)the passing of probates and administrations through the High Court in contentious cases where the contest has been terminated,

(b)all business of a non-contentious nature in matters of testacy and intestacy not being proceedings in any action, and

(c)the business of lodging caveats against the grant of probate or administration;”

• This is to be contrasted with the definition of a probate claim in CPR 57.1(2)(a), which is as follows:

“(a) ‘probate claim‘ means a claim for –

(i) the grant of probate of the will, or letters of administration of the estate, of a deceased person;

(ii) the revocation of such a grant; or

(iii) a decree pronouncing for or against the validity of an alleged will;

not being a claim which is non-contentious (or common form) probate business.”

• A grant in common form is liable to revocation, commonly by a probate claim. A grant in solemn form  is said to be like a claim in rem. It is binding not only on the parties but anyone interested in the estate who was aware of the action but took no part; Re Langton [1964] P. 163,  and irrevocable except where a later will is discovered subsequently or there has been fraud in obtaining the grant. There is no limitation period for bringing of a probate claim.
• What is not a probate claim:
  • A claim for rectification of wills under s.20 of the Administration of Justice Act 1982 (section II of CPR part 57)
  • A claim to remove or substitute personal representatives under s.50 of the Administration of Justice Act 1985 (section III of CPR part 57)
  • Claims under the Inheritance  (Provision for Family and Dependants) Act 1975- these are Part 8 claims (section IV of CPR part 57)
  • Disputes about the administration of the estate, for example disputes as the ownership of property said to be comprised in the estate, burial disputes and  claims involving complaints by beneficiaries of undue delay in the administration of the estate.
• Probate claims are different from other claims:
  • The claim is an enquiry into the last testamentary wishes of the Deceased.
  • The court takes an active role to seek to give effect to those wishes and to consider the possibility of an intestacy.
  • The court needs to be alert to see whether there are others affected by the claim who should be joined or given notice under CPR 19.8A.
  • Judgment in a probate claim is treated as a judgment in rem, binding on those who were not party to the proceedings, save where a later will is found or the grant obtained by fraud.
  • Settlement of the claim must leave the estate with a grant.
• The most common  grounds for  challenging a will:
  • A failure to comply with the formalities for the execution of a will  as set out in s. 9 of the Wills Act 1837-the will must be in writing, signed by the testator/testatrix or by some other person at their direction, the signature must be applied or  acknowledged in the presence of two or more witnesses present at the same time and they must attest and sign the will or acknowledge their signature in the presence of the testor/testatrix- there is now specific provision for this to be done by video-conferencing.
  • Lack of testamentary capacity-the testator must understand:
    • The nature of the act of making the will
    • The effect of making a will
    • The nature and extent of the property of which they are disposing
    • The claims on their estate of those benefitting and those excluded and not be acting under a disorder of the mind poisoning their affections towards those excluded or a delusional influence when making a disposition which but for the delusion would not have been made; Banks v Goodfellow (1870) LR 5 QB 549.
  • Want of knowledge and approval-did the testator understand and approve the contents of the will.
  • Lack of execution due to forgery.
  • Undue influence-those challenging the will must prove actual undue influence, presumed undue influence is not enough. Was the testator/testatrix coerced into doing that which they did not desire?

There are other grounds of challenge such as: the Will was revoked, the testator’s intention is not ascertainable from the document said to be the Will, the beneficiary cannot be identified or is incapable of taking the gift or the gift itself cannot be ascertained.

Note: Not all Probate claims are hostile actions. The circumstances may be such the executors or administrators have  doubts as to the validity of the deceased’s Will. For example, whether it was validly executed or whether it is a Will at all.; in a recent case in Newcastle personal representatives of a deceased asked the court to determine whether the deceased’s  signed and witnessed words on the back of a photograph, the terms of which could have been a bequest or a disclaimer of property, constituted a valid will and, if it was, sought a grant in solemn form.

• How do you start where you wish to challenge the validity of a Will or challenge who is entitled to administer the estate?

Pre-litigation

1. Where there has been no grant: To ensure that a grant is not issued without your knowledge you enter a caveat under rule 44 of the Non-Contentious Probate Rules; it is proposed that “caveats” will be called “objections” when the Rules are amended.  The caveat lasts 6 months but can be extended.  It has the effect of staying any application for a grant. The rules contain the procedure as to what is to happen where there is an application for a grant and resolving disputes as to the continuance of the caveat. If, however, a probate claim is issued, the caveat remains in force until the action is determined. In that way, the caveat gives protection against a grant where there is a dispute as to the validity of the Will or person entitled to a grant.
   1. Whether there has been a common form grant or not, before sending a letter of claim send a Larke v Nugus letter, and consider the answers. The letter  requests information relevant to the validity of the will, such as when did the solicitor, or other person making the will, receive instructions, how were they expressed, did the deceased indicate that they knew they were making a will etc. -the ACTAPS code at Annex E contains  a specimen Larke v Nugus request.
   1. There is no specific pre-action protocol so the PD-Pre Action Conduct and Protocols applies. A pre- action letter must be sent in accordance with the protocol. The ACTAPS code  provides a suitable all- purpose template at Annex B and C which requires some tailoring to take account of the nature of the claim.
   1. CPR Rule 31.16 is available for pre-action disclosure.
   1. Section 122 and 123 of the Senior Courts Act 1981 gives the High Court the power to order the production of testamentary documents and for the questioning of those with knowledge of such documents.

• The litigation stage-start by re-reading CPR 57 section  I and part 1 of PD57A as well as the relevant parts of the Chancery Guide.

Issuing the claim

1. The claim is commenced by the part 7 procedure; CPR 57.3. The disclosure pilot and cost budgeting applies as this is a multi-track Part 7 claim. The issue of the claim prevents a grant until the claim is concluded.
   1. It can be issued in a Chancery District Registry, Chancery Chambers in London or a County Court where there is also a Chancery District Registry. Note, however, that the original jurisdiction of the County Court is limited to estates valued at no more than £30,000; The High Court and County Court Jurisdiction (Amendment) Order 2014 article 2 (5). A case issued in the High Court but transferred down under s.40 of the County Courts Act  1984 can be dealt with in the County Court whatever the value.
   1. Contentious probate claims issued in the Newcastle Registry are  entitled IN THE HGH COURT OF JUSTICE, BUSINESS AND PROPERTY COURTS IN NEWCASTLE, PROPERTY TRUSTS AND PROBATE LIST (Ch D). They cannot be filed electronically on CE file unless the court otherwise orders due to the need to file certain original documents;  CPR PD 51O para 3.5. In an emergency, such as where urgent interim relief is sought to protect the assets of the estate and there is no access to the court office due to Covid, arrangements can be made with the BPC section to issue electronically.
   1. Anyone with an interest in the estate may bring the claim and anyone affected by the claim should be joined as a party or given notice of the claim so that they can join. CPR Part 19.8A prescribes a procedure for giving notice to an affected party after proceedings have commenced which has the effect of causing them to be bound by any judgment. Rule 57.6 requires the joining of every person entitled to a grant. A creditor of a beneficiary has sufficient interest to bring a claim, a creditor of the estate does not; Randall v Randall [2016] EWCA Civ 494
   1. Part 57.7 sets out what must be included within the statement of case.
   1. The claimant must file testamentary documents and file a statement concerning such documents which should be in the form set out on the PD; you will sometimes see these have been referred to by there old name of “testamentary scripts” and the “statement of testamentary scripts.” Testamentary documents are defined in 57.1- and mean a will, a draft will, written instructions for a will and any document purporting to be evidence of the contents of a will, or copy of a will which is alleged to have been lost of destroyed.  Paragraph 29.49 of the Chancery Guide gives instructions as to how original testamentary documents and wills are to be filed.  In an emergency, permission can be sought to issue and lodge the testamentary documents later.
   1. In cases where there has been a grant of probate the grant, if not lodged with the claim form, must be lodged within 7 days of the claim form.
   1. If the original Will is with the probate registry, i.e where there has been an application for a grant, it will be sent to the court dealing with the probate claim directly. Leeds District Probate  Registry co-ordinates the retrieval and transmission of the Will. Upon the issue of a probate claim, the issuing court informs Leeds.  The registry notifies all caveators of the claim, obtains the original of the Will from the registry from which the grant was sought and sends it to the court in which the probate claim has been issued.

• What if you are a Defendant?
  • CPR 57.4 provides for the service of the Acknowledgment of Service 28 days after the Claim Form unless the latter states that the  Particulars of Claim is to be served later in which case 28 days from service of the Particulars of Claim.
  • The defendant must lodge the testamentary documents and statement relating to the same with the acknowledgment of service.
  • The rules as to the contents of the statement of case apply to the Defendants apply as they do to the claimant. It may be the claimant who wishes to propound the will and the defendant who is alleging that it is invalid. The defendant may be counterclaiming that some other will is the last will of the deceased. If they contend that they have any claim or remedy relating to the grant of probate they must serve a counterclaim. If the claimant fails to serve a particulars of claim, the defendant can, with the permission of the court serve and counterclaim and the probate claim will proceed as if the counterclaim were the particulars of claim.
  • If the defendant does not wish to raise a positive case, but insists on the will being proved in solemn form and for that purpose will cross-examine the witnesses who attested the will, they can give notice to that effect in the defence and will be protected on costs unless the court considers there was no reasonable ground for opposing the will; CPR 57.7(5).

1. The next stage

If the defendant fails to acknowledge service, default judgment is not available ;CPR 57.10. A claimant faced with such a situation can apply for the case to proceed to trial-note the requirement to serve written evidence of service. In such a case the court can direct that the trial be on written evidence alone. If only some defendants fail to acknowledge, the claimant can proceed with the claim as if that defendant had acknowledged service.

1. The case management stage
   1. A reason for filing all testamentary documents is that it enables the court to consider who else may be affected by the claim. These may be the beneficiaries under an earlier will, those entitled on intestacy or beneficiaries under the disputed will but who are not yet parties. There may be actual or potential  beneficiaries who require representation, such as children and those under disabilities or unascertainable parties, such as children unborn. It may be convenient for a group of those with the same interest to be the subject of a representation order. Those with an  interest in the outcome which may not justify their participation in proceedings  may be given notice under CPR 19.8A. For example, there may be small bequests  to a number of charities. Where, however, there are gifts to charities which make up a large part of the estate, it is desirable that they become parties but the possibility of one lead charity acting as a representative defendant should be considered in the event that their interests are aligned. These are matters which will be considered by the court at this stage.
   1. Expert evidence: Where incapacity is alleged, it is inevitable that the need for medical evidence will be considered. Handwriting or scientific evidence may be needed as to the authenticity of the Will if forgery is alleged. An order can be made for the Will to be made available for examination. An party wishing to examine  testamentary documents before lodging their own must make a Part 23 application to the court.
   1. The court will need to consider any related claims, such as an under the Inheritance Act 1975. Since the amendment to s.4 of the Act by the Inheritance and Trustees Powers Act  2014, in force from 1^st October 2014, it has been possible it issue an inheritance claim before the date of the grant of representation. It can arise, therefore, that both claims are proceeding in parallel though the outcome of the 1975 Act claim is dependant upon the decision as to the validity of the Will. For example, it may be that the 1975 Act claim has been made by someone entitled on the intestacy. If the Will is pronounced against and the estate intestate as a result there may be no need to proceed with the claim.
   1. ADR may be considered at this stage though it is to be hoped that the parties have already sought to pursue that option. A financial dispute resolution hearing or early neutral evaluation may be offered or requested.
   1. Cost budgets will be set if not agreed.  Any party who intended to apply for an order for costs out of the estate ought to have filed with their statement of case and served on all other parties written notice of that intention together with a budget of the costs likely to be incurred by that party; PD3F para 5. The PD does not contain a sanction for failure and this is often overlooked, probably because it is buried in a PD relating to cost capping.

1. Disposal without trial
   1. Summary judgement is available, CPR 57PD para 5.1, but will rarely succeed.
   1. The claim cannot be discontinued without permission; CPR 57.11(1). Discontinuance will be rare unless part of a compromise.
   1. Settlement of the probate claim is dealt with by PD57A para 6. Where the parties have agreed to compromise the claim three results may follow:
      1. The court may order the trial of the claim on written evidence, this will lead to a grant in solemn form. If there is a doubt as to capacity, medical evidence should be  provided. If the last will is not to be admitted to probate but an earlier one is to be pronounced in solemn form or, if there is no will, an intestacy declared, the last will have to be pronounced against. To do this the court will need sufficient evidence that it is proper to pronounce against the last will. It is the duty of the probate court to give effect to the testator’s wishes and it should not pronounce against what it knows to be the last will without making inquiry as to is validity; Re Muirhead [1971] P.263. Where an earlier will is to be pronounced for, there must be evidence of due execution.
      1. Where the court permits the discontinuance of the claim under CPR 57.11(1) this will lead to a grant in common form to a named individual, if entitled.
      1. S.49 of the Administration of Justice Act 1985 enables the High Court to make a grant in solemn form if all relevant beneficiaries consent. To do this it will need written evidence identifying the relevant beneficiaries and exhibiting their consent; written evidence of testamentary documents required by CPR 57.5 will still be necessary.
   1. Tomlin Orders require careful drafting. They should invite the court to pronounce for a particular will or against the will(s) propounded. The court can only make such an order without a trial in a S.49 case. In other cases, if there is to be no trial, only a grant in common form will be available. The terms of the compromise may be, however, that the estate is divided in a particular way whether or not the court pronounces for a particular will.
   1. Where there are children or protected parties the court must approve any compromise. The approval will be heard in private and must be supported by a witness statement of the litigation friend exhibiting an opinion on the merits of the settlement. If there is to be an application for a Will to be pronounced  for or against in solemn form the applications can be listed together, with the application relating to the Will heard in open court. It may be that the trial of the claim could be dealt with on written evidence.
2. What if the case does not settle and proceeds to trial?
   1.  The usual practice is for the claimant to start unless the burden of proof on all issues lies with the defendant. Bear in mind that it could be the claimant or the defendant who are seeking to prove the Will. The claimant may be seeking a grant in solemn form in the light of a challenge to its validity by the defendant. Equally, it could be the claimant who seeking to revoke an existing grant and met by a defendant resisting the claim and seeking a grant in solemn form. One of the parties may be seeking a grant in solemn from in respect of an earlier Will if that under challenge is invalid or a subsequent Will.  If there have been several Wills it is generally better to start with the last in time for if that is valid and was expressed to revoke all earlier Wills and it is clear that it had such effect, the inquiry can stop there.
   1. The burden of proof lies, in general, on the party propounding the Will. Where fraud, undue influence and forgery are alleged, the burden lies on those who allege it. The burden of proof can shift in the course of the case. The testator/testatrix is presumed to have testamentary capacity. If the will is rational on its face and is proved to be duly executed there is a burden on those who challenge the will to prove unsoundness of mind. If there is evidence put before the court of incapacity, the burden shifts to those propounding the will to establish that the deceased was no so suffering when the will was executed. Where those who challenge the Will raise a prima facie case that the deceased did not have knowledge of and approve the contents of his Will or there is evidence surrounding the circumstances of the execution of the Will which excite suspicion, such as the main beneficiary having drafted the will, the onus is on those propounding the will to prove knowledge and approval.

1. Costs
   1. The general rule is that costs follow the event.
   1. There are exceptions to the general rule:
      1. The defendant who gives notices that they  only ask for the Will to be proved (see above)
      1. Where the testator has caused the uncertainty which gave rise to the need to prove in solemn form, those challenging the Will would not be condemned in costs may recover their costs from the estate if they acted reasonably.
      1. Where the principle beneficiary has misconducted themselves or acted unreasonably the losing party may receive their costs from the estate where the Will is upheld.
   1. Generally, only one set of costs will be allowed for those challenging the Will.
   1. Executors seeking to uphold a Will should ensure they have an indemnity from a solvent beneficiary, take a neutral stance or seek the court’s direction in pursuing the claim. There is nothing improper in the Executors seeking uphold the Will and in general they can expect to be indemnified out of the assets of the estate but if a court considers that they acted unreasonably, for example there was clear evidence of invalidity or intransigence on their part, the outcome in costs may be otherwise. Usually, the Executors will be in a position to take a neutral stance because there will be at least two sets of opposing parties, the beneficiaries of the estate  Will if valid and those if it is not. In such circumstances, the Executors should make it clear in their pleadings that they are facing competing claims and take a neutral stance and do not fall into the temptation of backing one side over the other. That is not to say that they will not be involved at trial, both by being represented and, very commonly in the case of solicitor executors who prepared the Will, giving evidence of  due execution or capacity.

HH Judge Philip Kramer

18 October 2020