There have been a number of excellent articles published recently surrounding the question of “hopeless” contested probate cases. The current concern is that the rise of such work is causing legal departments, or indeed entire firms, to be set up specifically to cater for low-value, weak cases which might be inclined to settle out of court.

It has been suggested that similar to the rise of the personal injury claim as a mainstay for UK legal practices in recent years, contested probate is now experiencing the same boom. The hackneyed PI slogan of “where there’s blame, there’s a claim” seems to have transferred itself to family members of anyone with even a modest estate as a go-to right when they feel aggrieved by the contents of a Will – “where there’s an estate, you can litigate” if you will.

The “absolutely hopeless” contested probate claim

The latest debate has arisen as a result Shapton v Seviour brought under the Inheritance (provision for Family and Dependants) Act 1975, in which Deputy Master Lloyd made the point that the case was “absolutely hopeless” and “never stood a reasonable prospect of success”.

When Colin Seviour died, he left his entire estate (valued at £265,000) to his wife, Maria – his Will was clear. Previous Wills made by the couple had stated that on the second death the estate would be shared equally between the four children (both Maria and Colin had two children each from previous relationships). Carly, Colin’s daughter, issued a claim for reasonable financial provision – a one-quarter share in the estate.

In the eyes of Judge Lloyd there were two reasons the claim was deemed hopeless: the modest size of the estate and the “debilitating illness” of the defendant who, he said, “will need every penny to live out her remaining years in dignity and comfort”.

The judge noted that the claimant and her husband had inflicted upon themselves a certain level of debt and, despite this, led a relatively comfortable life. Whilst they felt they needed a larger home, it would never have been “on the cards” for this claim to solve that issue.

Judge Lloyd acknowledged that the daughter’s claim was ultimately brought about by her sense of entitlement to a portion of her father’s estate, however, the contents of the father’s Will were clear and she was wrong in her belief.

Contentious probate and personal injury claims – two very different animals

Unlike a personal injury claim in which, generally, facts of negligence and circumstance will be established to apportion blame, contentious probate cases are often brought and defended based upon high emotion and a sense of right. So, while in the eyes of the judge Shapton v Seviour had no merit, in the eyes of the parties involved, their inexorable rights were at stake, the situation was crucial. In this case, a specific set of personal circumstances led the defendant to make a steely decision to see the litigation through to the end; she had no intention of settling an issue which she, and the judge, felt she should not have had to settle.

It can be argued that the rise of home ownership and the accumulation of property wealth is the trigger for the rise in inheritance claims. Inheritances have become the norm and it’s not just real estate that people view as their familial right, it’s index-linked pensions and heirlooms, cars and jewellery etc. etc. For some people, the prospect of inheritance becomes key to their future financial viability, so it’s no wonder there is a sense of entitlement – rightly or wrongly.

Add to this the rise of the blended family, involving complex relationships resulting from divorce, and the heat surrounding inheritance increases to boiling point. When a Will is read and doesn’t contain the bequests that a family member expects, their knee jerk response is to enter a caveat.

And just about anyone with a smartphone can do this at any time; the information is out there. You just have to ask Google a question about stopping probate and hey presto you’re on GOV.UK filling out an online application form to stop probate. Next step – you find a law firm who will run your case funded by a CFA and before you can say, “acrimony” there’s a contested probate claim on the table involving a low-value estate and the expectation that the defendant will settle so they can keep as much of the estate as possible.

Why the situation may continue

Sadly, as we face a period of economic uncertainty, financial hardship is likely to affect many families, and it is in such times of desperation that parties may feel they have no other option than to contest probate. Combine this with the trend for one-size-fits-all online Will writing, which does not adequately serve certain families and their complex relationships, and even the most recent situation of lockdown, in which the witnessing of Wills was made extremely difficult, and it’s easy to see why the numbers of relatively weak, contested probate cases may rise in the near future.

What claimants need, and the legal profession as a whole, is a model that does not endanger parties or the justice system. It is discomfiting to think that bad lawyers may be using CFAs to push weak claims towards mediation in the hope of pre-litigation settlements and worse to know that the cost of any unforeseen litigation will ultimately wipe out a large part of what is being fought over.

Unfortunately, some cases, such as Shapton v Seviour, will make their way to court and, as in this case, it is hoped that benevolent contested probate solicitors will work to assist them. With a wider view, the field needs experienced legal practitioners who understand the law fully and who will take the time to explain the full ramifications of contested probate to clients whose cases are sadly not viable for litigation. This can be time-consuming, harrowing and difficult, but it is sometimes necessary and needs to be a part of the process going forward or the rise of the hopeless case could become another whiplash epidemic.