Contentious Probate Claims – Do I really need a lawyer?

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In contentious probate claims we often get asked, “do I really need a lawyer, or can I bring a claim myself?”

The simple answer is, no, you don’t usually  need a lawyer. But in most cases you will generally be better off with a specialist lawyer representing you.

Clients frequently come to us with a list of claims they wish to bring against an estate or their opponent. Quite understandably many of their complaints centre on what they perceive to be morally right or wrong or what, in their view, is or isn’t fair. Without the benefit of expert legal advice, clients can often have a tendency to adopt a scattergun approach to their litigation, raising all possible claims against their opponent without considering the merits of each allegation. There are many problems with this approach. One particular difficulty is that if those claims don’t have any legal or factual basis then the claimant is potentially undermining their position and enabling their opponent to take advantage.

The problems faced by ‘litigants in person’ (those acting without a legal representative) was recently highlighted by the High Court when it struck out  elements of a claim brought by a litigant in person. The judge suggested that the litigant in person should accept the strike out as a remedy for her lack of legal representation. A ‘strike out’ is a draconian ruling as it prevents a party from pursuing their claim (or defence) any further. Furthermore, it can often carry with it severe cost consequences for the party concerned. Eyebrows were therefore raised when the judge referred to his decision as a remedy.

In the highlighted case the litigant in person made claims against her sister and a solicitor in relation to the administration of her mother’s estate. The claimant presented 38 claims in all, with her arguments running to 120 pages.

The judge who dealt with the application is quoted as saying:

There is a real danger that litigants in person may press on with parts of a claim which seem to them to demonstrate how badly the other side has behaved but for which there is no legal basis.’

He added:

Similarly, there may be parts of the claim for which, despite the strong suspicions or firm belief of the litigant in person, there is plainly no factual basis.

The judge contrasted the position of the litigant in person with a party who has the benefit of being advised and represented by a professional lawyer, commenting:

Litigants who are represented have lawyers who can give them expert advice about the legal and factual merits of the case. Litigants in person often lack such advice. For litigants in person, a potential advantage of a strike-out decision against them is that it may, to an extent, remedy that lack.’

Several elements of the claimant’s application were dismissed by the judge as being ‘hopeless’.

We represent both claimants and defendants in contentious probate disputes and are therefore very familiar with the tactics commonly used by both sides. Crucially, we also know what judges are looking for and how they expect a party to go about proving their case in a satisfactory manner.

We also understand that one thing which puts many people off seeking professional help is fear of legal fees. However, while legal costs in contentious probate claims can be considerable, we do offer a range of funding options. This includes deferred fees and specified costs limits. We also operate a very popular No Win – No Fee scheme which is available wherever a case has good prospects of succeeding and the sums in dispute justify our involvement.

So, in contentious probate claims at least, while the simple answer is yes, you can represent yourself, a party will generally have a better of chance of succeeding (and less chance of facing a cost order) with a specialist legal representative on their side.  And if the case has merit there is every chance that a method of funding can be found to enable you to obtain professional representation.

We operate a free legal helpline on a nationwide basis and are happy to provide initial guidance on any contentious probate dispute in England or Wales. Please call us on 0808 139 1606 or contact us via email at [email protected]