Court takes ‘success fee’ into consideration when calculating award in No Win, No Fee wills and probate dispute.
In the case of Bullock v Denton & Willoughby a claim was brought by a cohabitee against her late partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. Mr Denton had made a Will, leaving the entirety of his estate to his brother. It was worth about £2 million and consisted of a farming business and associated properties. He made no provision for his partner, Ms. Bullock, who he had been in a relationship with for four years when he died.
The solicitors representing Ms. Bullock were working on a No Win, No Fee basis. This is a type of flexible legal funding arrangement that specialist solicitors frequently offer. We deal with a large number of No Win, No Fee wills and probate disputes at Slee Blackwell. It is a particularly popular funding option because it avoids the need for the client to pay legal fees, either up front or as the case progresses. The solicitor bears the costs risk of the case and the legal fees are not payable unless the client wins their case.
No Win, No Fee funding is especially suited to claims under the Inheritance (Provision for Family and Dependants) Act 1975. These inheritance claims are made for “reasonable financial provision” from the deceased person’s estate where the claimant has “maintenance needs”. Accordingly, because there must be a “need” on the part of the claimant to substantiate an inheritance claim, it usually means that they do not have the financial ability to pay legal costs themselves. No Win, No Fee therefore enables them to bring their claim.
As solicitors take a risk in working on a No Win, No Fee basis, when they succeed they not only receive their usual legal fees, but in addition a “success fee” is charged. This is an additional amount and it is based on the overall costs of the case, rather than being, as many assume, a percentage of the ‘winnings’.
Solicitors who deal with No Win, No Fee wills and probate disputes have taken the view that while the legal fees can be recovered from the loser if the claim is successful, it is not possible to also recover the success fee from them. The success fee is usually paid out of the sum that the claimant is awarded by the court.
However, many lawyers have suggested that a claimant’s liability for a success fee should be taken into consideration by the court when it considers how much financial provision to award. Essentially, what is the point in thinking that an award of, say, £50,000 to cover a claimant’s future living needs, is sufficient provision, if the claimant then has to pay a slice of that sum as a success fee?
In the case of Bullock v Denton & Willoughby, the claimant’s solicitors therefore suggested that the success fee should be considered as a debt under section 3(a) of the Inheritance Act.
For the first time the court agreed to include the success fee in its calculations and made a significant contribution towards it in the award.
While the Judgment is not legally binding, it does lend authority for claimant solicitors to factor in the success fee when calculating the amount of financial provision required from an estate. We believe that it may well signal a significant change in the funding landscape for No Win, No Fee wills and probate disputes.
If you wish to bring an Inheritance claim yourself and are looking for experienced No Win, No Fee wills and probate solicitors, then please contact our Contentious Probate team on 0333 888 0404 or email [email protected] for a free case assessment and details of our No Win, No Fee funding scheme.