Do I need a lawyer to deal with a probate claim? Solicitors Slee Blackwell, who specialise in contentious probate in Devon & Somerset look at the pros and cons.
As solicitors specialising in contentious probate in Devon & Somerset we often have to consider whether a prospective actually needs our services or whether they can deal with the legal issues themselves.
Clients frequently come to us with a list of claims they wish to bring against an estate. 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, people sometimes have a tendency to adopt a scatter-gun approach, 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 stronger arguments 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 costs penalties. Eyebrows were therefore raised when the judge referred to his decision as a remedy.
The litigant in person had made claims against her sister and a solicitor in relation to the administration of her mother’s estate. She 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.’
‘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 contentious probate in Devon & Somerset 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.
However, professional representation is not appropriate in all cases. In particular the economics of involving a lawyer may not stack up in low value cases. Where the estate assets are modest and the sum in dispute is low, there is a real risk that the costs could outweigh the benefits, so in these circumstances we generally offer general guidance without making a charge.
We operate a free legal helpline, so if you need a solicitor specialising in contentious probate in Devon & Somerset then give us a call on 0333 888 0404 or contact us via email at [email protected]