Cancer Research UK and Blandy & Blandy have recently delivered a free webinar focused on “Effective Probate Strategies: Letters of Wishes and Cost Management in Contentious Cases”. A link to a recording of the webinar is available. In this webinar, Angela Bowman and Louise Low of Blandy & Blandy took a closer look at how Letters of Wishes can assist in ensuring that a testator’s testamentary wishes are adhered to, and how costs are approached in contentious probate litigation.
The following blog is a summary of the salient points discussed during the webinar.
A Letter of Wishes, also commonly referred to as an ‘Expression of Wishes’, is a non-binding document accompanying a Will or Trust aimed at offering informal guidance to executors, trustees and family members, as to how a testator wishes their estate to be distributed. As a Letter of Wishes is not a legally binding document, it does not need to comply with strict formalities in the way that a Will does.
A Letter of Wishes is often used to:
Explain why certain individuals are included - or excluded - from an estate;
Suggest how chattels should be distributed by the executors and trustees;
Guide trustees in discretionary trusts, especially where professionals are appointed.
When a testator excludes someone who might otherwise expect provision - such as a spouse, child, or dependant - a Letter of Wishes can be a strategic tool. Under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), certain individuals can bring a claim for “reasonable financial provision” to be made for them if they feel they have been unfairly excluded from the Will (or on intestacy).
The financial needs and resources of the applicant;
The financial needs and resources of the beneficiaries of the estate;
The size and nature of the estate;
Any obligations and responsibilities the deceased may have had towards the applicant or the beneficiaries of the estate;
Any physical or mental disabilities of the applicant and the beneficiaries; and
Crucially, “any other matter” the Court deems relevant, including the conduct of the testator, applicant or beneficiaries (s3 (1)(g)). It is in this context that a Court can take a Letter of Wishes into account.
It is important to keep a Letter of Wishes as factual as possible; an overly lengthy, rambling document is likely to carry less weight with the Court; and on a worst-case scenario could suggest that the testator did not have capacity to enter into the Will (if, for example, the contents of the Letter of Wishes suggest that the testator’s affections had, due to a disorder of the mind, been poisoned against the beneficiary he/ she is excluding (or for whom he/ she is making limited provision); and/or that the disposals he/ she is making are ones which, had his/ her mind been sound, would not have been made [Banks v Goodfellow (1870) LR 5 QB 549]).
The key lesson is therefore that Letters of Wishes are likely to carry the most weight with the Court when they are limited to factual matters.
In probate litigation, the general rule is that the losing party pays both their own and the winner’s costs (subject to assessment if not agreed). However, the Court has broad discretion. In deciding what order (if any) to make about costs, the Court will have regard to all of the circumstances, including the conduct of all parties, whether a party has succeeded on part of its case, and any admissible offer to settle.
The Court expects parties to try to resolve disputes before heading to trial. Failure to comply with pre-action protocols can lead to cost penalties, including a party being ordered to:
Pay the other side’s costs (in full or in part);
Pay the other side’s costs on the indemnity basis (less favourable to the paying party than a ‘standard basis’ assessment);
Have interest adjusted on any financial judgment.
Part 36 offers are formal settlement proposals that can significantly impact costs. The rules governing Part 36 offers and their consequences are set out in the Civil Procedure Rules.
The landmark case of Spiers v English [1907] P 122 established two key exceptions to the usual costs rule in probate disputes:
Testator-caused litigation: If the testator’s actions - such as unclear drafting or ambiguous instructions - led to the dispute, the Court may order costs to be paid from the estate.
Reasonable investigation: If the circumstances reasonably warranted an investigation (e.g. concerns about capacity), the Court may decline to penalise the unsuccessful party in costs (at least up to the stage of those investigations being deemed to be reasonable).
These exceptions aim to protect parties who raise legitimate concerns, even if they ultimately lose their case.
Conditional Fee Agreements (CFAs) are agreements between solicitors and their clients, whereby the solicitor’s fees will only be payable upon specified conditions being met. The most common type of CFA is informally known as a ‘no win, no fee’ agreement. CFAs will usually allow a potential claimant to pursue their claim without upfront costs needing to be paid; if their claim is ultimately successful (whether by way of settlement or an award at trial), the costs will then fall due, together with the success fee payable under the CFA. We usually see CFAs in cases with a strong likelihood of success. Claimants are now needing to consider the impact of the success fee which will become payable if they enter into a CFA, further to the Supreme Court decision in Hirachand v Hirachand [2024] UKSC 43, which held that success fees are no longer recoverable from an opponent, in the event of the Claimant succeeding with his/ her claim. Potential Claimants accordingly need to be aware that an award (or settlement) in their favour will be impacted by the success fee payable under any CFA they may enter into with their lawyer. Blandy & Blandy’s Contentious Probate team are here to help. Whether you are questioning the validity of a Will, feel that you’ve been unfairly excluded or insufficiently provided for by a Will or the Intestacy Rules, are concerned about the conduct of executors or are seeking advice relating to any other contentious Will or estate matter, do get in touch to discuss your potential case For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
Angela Bowman and Louise Low, Blandy & Blandy
