Contentious Probate, Inheritance Act & Trust Disputes

I am a registered public access Barrister, TEP, SCMA accredited mediation advocate, and a Certified Mediator, and my Practising Certificate has been extended by the Bar Standards Board to authorise me to conduct litigation.

To enquire about instructing me please visit the ‘Public Access Barrister & Mediator – Contentious Probate, Inheritance Act, & Trust Disputes’ page of this website.

My Legal Services as a Barrister and Mediation Advocate

Exercising full rights of audience in all courts and proceedings I provide the following services in relation to Contentious Probate, Inheritance Act & Trust disputes:

    • legal opinions about the construction and rectification of wills under s.20 of the Administration of Justice Act 1982;
    • preliminary evaluation of the legal merits of a claim or defence;
    • case preparation (including advice about evidence, drafting witness statements, and instructing technical tax experts);
    • drafting statements of case;
    • drafting applications and appearing as an advocate at interim hearings;
    • negotiation, mediation advocacy, and drafting settlements and orders;
    • drafting skeleton arguments; and
    • Trial advocacy.

My recent and current work includes claims and proceedings involving:

  • rectification;
  • Beddoe applications;
  • removal of a caveat;
  • lack of knowledge and approval (including the reversal of the burden of proof under the ‘suspicious circumstances’ rule);
  • presumed undue influence (in relation to a lifetime transfer of property);
  • actual undue influence (in relation to a lifetime transfer of property);
  • probate undue influence;
  • fraudulent calumny;
  • lack of testamentary capacity (and the reversal of the burden of proof by raising a ‘sufficient doubt’);
  • common intention constructive trusts; and
  • forgery.

Excluded advice

Please note that I do not provide any:

  • advice about conveyancing;
  • advice about Land Registry practice and procedure;
  • investment advice;
  • financial advice;
  • accounting advice;
  • advice about any law other than English law;
  • advice about litigation funding options, insurance (including without limitation ATE insurance), legal aid; and
  • tax advice.

The provision of such advise is expressly excluded under the terms of my retainer.

Claim value

If the value of a claim exceeds £2 million, I will not act, because that is outside my PI Cover.

Stages in preparing and litigating a Part 7 (non-money) multi- track claim through to trial 

  1. Evaluation of the:

1.1     evidence (which usually involves taking preliminary proof of evidence from  key witnesses, reviewing documents, and drafting a case summary incorporating a chronology of facts cross-referenced to evidence) – it may also be necessary to instruct an expert to provide a technical report e.g. about testamentary capacity;

1.2     basis of claim and legal merits (i.e. what has to be proved, by whom, and the what standard);

1.3     commercial analysis (involving preparation of an estate assets inventory with valuations);

1.4     remedies;

1.5     applicable civil procedure rules;

1.6     costs (and initial preparation of a costs budget for filing and exchange 21 days before the first case management conference (‘CMC’));

1.7     litigation risks (including costs); and

1.8     ADR options,

which involves providing a written report or opinion.

  1. Formulating and then presenting the claim (including pre-action protocol compliance) which involves drafting a letter before action which is usually followed by an exchange of correspondence in an attempt to clarify, define, and narrow the issues in dispute.
  1. Drafting, issue, and service of the claim form and particulars. Issue fee for non-money claims:
Claim other than money £308 county £528 high
  1. Acknowledgment of service (optional).
  1. Defence.
  1. Reply.
  1. Directions questionnaires.
  1. Track allocation /directions, and filing and exchange of costs budgets.
  1. Interim applications and hearings e.g. for striking out. Application notice fee:
Applications £255
By consent or without notice £100
  1. Case management conference (if ordered by court).
  1. Lists of documents.
  1. Inspection of documents.
  1. Witness statements.
  1. Experts’ reports.
  1. Without prejudice meeting of experts.
  1. Pre-trial checklists.
  1. Listing for trial. Hearing fee:
Hearing Fee £1,090 Multi-track
Hearing Fee £545 Fast-track
  1. Pre-trial review (if ordered by court).
  1. Preparation of trial bundles and skeleton arguments.
  1. Trial.

Costs

I will advise generally about costs risks during the first conference. Please note that I do not make commercial decisions for my clients, therefore the making of any decision by you to propose, accept, or reject an offer of settlement will be expressly stated to be outside my retainer in the Public Access Agreement/Client Care Letter.

Where a party wins a court action an order for costs is likely to be made in their favour. However, there are three potential problems with this. First, your opponents may not actually be able to pay the costs awarded against them either in full or at all. Second, because the costs would be assessed by the court in a process called taxation, by which the court only allows the recovery of certain costs  (even though you may have had to pay more) you will not get all of your fees paid even if your opponents are able to pay them. In practice you are unlikely to recoup more than two-thirds of your actual costs unless costs are awarded by the court in its discretion on the indemnity basis, which is exceptional, e.g. for intentional wrongdoing and breach of fiduciary duty by a solicitor, and where breach of fiduciary duty is alleged it must be pleaded in accordance with CPR, r. 16.4 and PD 16, paragraph 8.2, which requires  that,

‘The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:

(1) any allegation of fraud,

(2) the fact of any illegality,

(3) details of any misrepresentation,

(4) details of all breaches of trust,

(5) notice or knowledge of a fact,

(6) details of unsoundness of mind or undue influence,

(7) details of wilful default, and

(8) any facts relating to a claim for mitigation expenditure.’

Third, if your opponents are legally aided, you may not be able to recover your costs in any event; needless to say, we will let you know immediately if they get legal aid.

Should you lose a court action or if an order is made against you at the hearing of an interim application, then an order for costs is likely to be made against you in respect of the costs of the other side. This means that you will have to pay your opponents’ legal costs, or a proportion of them, in addition to your own legal expenses.

As a general rule, judges at all levels are required to assess costs summarily at the end of a trial on the fast track or at the conclusion of any other hearing lasting less than one day, i.e. on the spot at the end of the trial/hearing, see: See, ‘Guide to Summary Assessment of Costs’: Guide to Summary Assessment of Costs 2005 edition (publishing.service.gov.uk)

See also:

Court fees: https://formfinder.hmctsformfinder.justice.gov.uk/ex50-eng.pdf

Draft Chancery Case Management Directions: http://wbus.westlaw.co.uk/forms/pdf/cpf10814.pdf

Chancery Guide: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630347/Chancery_Guide_updated_0717.pdf

Costs budgets: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03/practice-direction-3e-costs-management

Articles and blogs

‘A bird in the hand is better than two in the bush – the moral of Thornton & Ors v Woodhouse & Anor [2017]’ | Carl’s Wealth Planning Blog

Advocacy & Experts | Carl’s Wealth Planning Blog

Advocacy at remote hearings | Carl’s Wealth Planning Blog

Arbitration of trust diputes in London | Carl’s Wealth Planning Blog

Art of persuasion in court – Advisory Excellence

Beddoe Applications | Carl’s Wealth Planning Blog

Between a rock and a hard Place – the litigation risk faced by an executor/beneficiary | Carl’s Wealth Planning Blog

Breach of duty – The taking of an account against defaulting charity trustees | Carl’s Wealth Planning Blog

Breach of Fiduciary Duty Claims | Carl’s Wealth Planning Blog

Central London County Court Guide 2020 | Carl’s Wealth Planning Blog

Christodoulides v Marcou [2017] (High Court) – Fraudulent Calumny | Carl’s Wealth Planning Blog

Common intention constructive trust – Transfer of property by Father to Daughter’s partner = detrimental reliance. | Carl’s Wealth Planning Blog

Could HMRC attack a trust established to receive a capital sum in settlement of an Inheritance Act claim as a sham or an ‘illusory trust’? | Carl’s Wealth Planning Blog

Deed of Variation | Carl’s Wealth Planning Blog

Equitable compensation arising out of sale of a property ordered under section 14 TLATA | Trusts & Trustees | Oxford Academic (oup.com)

European Commission has declined consent to the accession of the UK to the Lugano Convention | Carl’s Wealth Planning Blog

Expiry of limitation period in midnight deadline cases | Carl’s Wealth Planning Blog

Financial provision claim by adult child – Miles v. Shearer [2021] | Carl’s Wealth Planning Blog

Getting it right from the start | Carl’s Wealth Planning Blog

How civil courts decide | Carl’s Wealth Planning Blog

Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021) | Carl’s Wealth Planning Blog

Inquisitorial jurisdiction of Court of Protection | Carl’s Wealth Planning Blog

Investment Fund Fraud – Jurisdiction of English court | Carl’s Wealth Planning Blog

Islamic law principles applicable to the administration of trusts | Carl’s Wealth Planning Blog

Judicial Early Neutral Evaluation | Carl’s Wealth Planning Blog

Judicial-ENE and the ‘New Normal’ | Trusts & Trustees | Oxford Academic (oup.com)

Liability for costs in a Contentious Probate case | Carl’s Wealth Planning Blog

Mediation in the Court of Protection | Carl’s Wealth Planning Blog

Mediation Strategies | Carl’s Wealth Planning Blog

Mediation of Will, Inheritance, Probate, and Trust disputes | Carl’s Wealth Planning Blog

Parallel Breach of Fiduciary Duty Claims | Carl’s Wealth Planning Blog

Pleading Fraud/Dishonesty, Striking Out & JENE | Carl’s Wealth Planning Blog

Poverty charity intentionally abused for criminal purposes by two of its trustees | Carl’s Wealth Planning Blog

Recent advocacy testimonial | Carl’s Wealth Planning Blog

Rectification of wills | Carl’s Wealth Planning Blog

Remote advocacy in Cayman Islands hearings | Carl’s Wealth Planning Blog

Self-dealing by intermeddling | Carl’s Wealth Planning Blog

Striking-out a Defence for being ‘Equivocal’ | Carl’s Wealth Planning Blog

Shifting the burden of proof in a rectification claim before the FTT | Carl’s Wealth Planning Blog

Testamentary Capacity (my talk to ACTAPS) Handout.pdf (carlislam.co.uk)

The Advocate and the Expert in the Court of Protection | Expert Witness Journal

The Advocate and the Expert in a Testamentary Capacity Claim | Expert Witness Journal

The English court can order mediation where a party does not consent | Carl’s Wealth Planning Blog

The psychology of advocacy | Carl’s Wealth Planning Blog

Trust Litigation after BREXIT | Carl’s Wealth Planning Blog

Watson v Kea Investments Ltd [2019] – Rate of interest awarded against trustees | Carl’s Wealth Planning Blog

Will Construction – Approach of English Court | Carl’s Wealth Planning Blog

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog

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