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:
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.
You will need to ensure that you claim within the strict time limits.
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.
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:
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.
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:
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.