Contentious Probate

To enquire about instructing me directly please send an email to carl@ihtbar.com.

My Legal Services

I am a registered Public Access practitioner, and subject to the Public Access Rules can be instructed directly by members of the public (including executors and trustees) without the involvement of a Solicitor. I act principally for lay and professional clients located in the North East, Midlands, and in London. I am a member of the South Eastern Circuit, which includes London (www.southeastcircuit.org.uk), Chancery Bar Association (www.chba.org.uk), Society of Trust and Estate Practitioners (www.step.org), belonging to the STEP ‘Contentious Trusts and Estates’ and ‘Mental Capacity’ Special Interest Groups, and a SCMA accredited mediation advocate (www.mediationadvocates.org.uk).

Exercising full rights of audience in all courts and proceedings I provide the following services in relation to will, trust, and inheritance 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 orders;
  • 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;
  • lack of testamentary capacity (and the reversal of the burden of proof by raising a ‘sufficient doubt’);
  • common intention constructive trusts; and
  • forgery.

In June 2016 I appeared in the High Court in London as counsel for the claimant in Clark –v-  The Trustees of the Victor Hugo Fund (A Trust of Balliol College in the University of Oxford) & ors [2016], which was an unopposed Part 8 Claim heard by Deputy Master Kaye in the Chancery Division.

As my Skeleton Argument mentioned, ‘Where a claim to rectify a document (such as a … will) is unopposed, it is the duty of the advocates for the concurring parties to give the court all the help that it requires to enable it to reach the right decision… In Sutton v England… Mummery LJ… pointed out that the court was nervous about the fundamental matter of jurisdiction if it was asked to act without the benefit of the adversarial argument that normally operates to discipline its decision-making processes. In those circumstances counsel… “… bear a special responsibility. It is their duty to give the court all the help that it requires to reach the right decision.”’ (‘Rectification: The Modern Law and Practice Governing Claims for Rectification for Mistake’ 2nd edition by David Hodge QC.

On the evidence, legal arguments and authorities presented, Deputy Master Kaye granted rectification of the will.

The claim was made pursuant to s.20(1)(a) of the Administration of Justice Act 1982 on the ground of ‘clerical error’.  The clerical error, came about, as a result of the omission by a firm of solicitors, of a declaration contained in the former will of the deceased Testatrix limiting the scope of her English will to assets located in this jurisdiction at the date of her death.

In presenting submissions over a 90 minute period, I advanced and developed the thesis that:

(a)          if the Testatrix, who owned a property in France, absent a French will, intended on the date of execution of her English will, that her son would inherit that property under French Law, it was logically axiomatic that she must also have intended a territorial declaration contained in her earlier English will (limiting the application of that will to her assets sited in this jurisdiction), to be included in her new English will; and

(b)          therefore the omission by the solicitor of a territorial declaration when updating the original will of the Testatrix using a different office form, was a “mechanical oversight”  which constituted a clerical error within s.20(1)(a) of the Administration of Justice Act 1982.

My first submission was that,

‘In a nutshell, this case is all about a “mechanical oversight” by [the firm of solicitors who drafted the will of the deceased Testatrix].

When I say ‘oversight’ what I mean is an ‘omission’.

And when I say ‘mechanical’, what I mean is ‘writing’ – in other words, an error that arose out of the mechanical process of drafting the New Will.

If on the balance of probabilities, the intention is shown to have existed, then it is submitted that [the Testatrix] must also have intended that her New Will would only apply to her property in England. The way I put it, is that this conclusion, is logically axiomatic. In which case Master, I say, it follows that the failure of the New Will to carry out her intentions by reason of the drafting omission by [the firm of solicitors], was a clerical error within the meaning of s.20(1)(a) of the Administration of Justice Act 1982 .’

In my final submission I argued that,

‘As Michael Briggs, counsel for the plaintiff in Wordingham v Royal Exchange Trust Co Ltd [1992] observed, just before he administered the coup de grace, “Inadvertence is the touchstone of clerical error”.  In Wordingham [in paragraph B on p.419], the learned Judge quoted the following words from the leading judgment of Fullager J in the Australian case of Reg v Commissioner of Patents, Ex Parte Martin [1953], “the characteristic of a clerical error is not that it is in itself trivial or unimportant, but that it arises in the mechanical process of writing or transcribing.”

In this case, it is submitted:

(i)            that the mistake made by [the solicitor] is a textbook ‘clerical error’ within the ambit of s.20(1)(a); and

(ii)           that by admitting that their mistake was a drafting omission, in other words that it arose in the mechanical process of writing, which by definition, and as I have sought to demonstrate today, is a “mechanical oversight”, [the firm of solicitors have] confirmed that the error did not arise out of any misunderstanding of  the  instructions of the Testatrix.

Because the drafting error made by [the firm of solicitors] was a “mechanical oversight”, as Michael Briggs said when delivering the coup de grace in Wordingham, it would therefore be remarkable if section 20 did not assist. Finally, as Lord Neuberger stated in paragraph 79 of his judgment in Marley v Rawlings, “sections 17 to 21 of the 1982 Act are, as I see it, all aimed at making the law on wills more flexible and rendering it easier to validate or ‘save’ a will than previously… the whole thrust of the provisions is therefore in favour of a broad interpretation of a provision such as section 20(1)(a).

Master I therefore invite you to conclude that the mistake made by [the firm of solicitors] falls within the broad ambit of s.20(1)(a) as it is now applied by the courts in England and Wales.’

In April I was a guest speaker at the annual one day seminar of the Association of Contentious Trust and Probate Specialists (ACTAPS), held at the offices of Charles Russell Speechly in the City of London, and have been invited by ACTAPS to write and submit an article about Clark –v-  The Trustees of the Victor Hugo Fund (A Trust of Balliol College in the University of Oxford) & ors [2016] for publication in their Newsletter later in the year, which I will aim to write up in October/November. This will deal specifically with technical evaluation (i.e. the analytical framework developed in Re Segelman and the Wordingham factors), case preparation, and advocacy, in an unopposed Part 8 claim for rectification of a will.

As I have written in my new book, the ‘Contentious Probate Handbook’ (published by the Law Society 1 October 2016), in an unopposed claim for rectification, ‘The trial judge will not be engaged in making any finding of primary fact, on the basis of conflicting evidence. Instead of finding the facts, the trial judge will be concerned to summarise and evaluate the evidence, and to conclude whether or not it is good enough to establish a sufficient case of rectification’. (Hodge, paragraph 8-17). A factor to which the court may attach weight is where as in Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412, the solicitor will draftsman frankly accepted that the omission of a provision in the original will was an error on his part. In Walker v Geo H Medlicott & Son [1999], Sir Christopher Slade said, ‘I think that, if the claims of negligence made by [the claimant] in the present action are well-founded, he would also have had a good claim for rectification of the will. Furthermore I think that in most other cases where there has been a negligent error in drafting, the remedy of rectification is likely to be available.’ In Stephenson v Stephenson [2004] EWHC 3474 (Ch) (which concerned rectification of a settlement), Lord Justice Dillon further said,

‘I have been referred to the need for the requisite degree of proof when rectification is sought in these circumstances. The old law as said by Lord Thurlow was that there should be ‘strong irrefragable evidence’. That phrase is not one which a modern lawyer would probably now use. It means no more than the standard of proof is the civil standard on the balance of probability, but the court must give sufficient weight to the fact that the written document expresses what appears to be a different intention to the parties… The court before it alters a settlement which affects other parties, must be satisfied by evidence which is compelling that that was the true intention. On the facts of this case I am satisfied that the evidence is compelling. It is all one way. It is confirmed by the solicitor who drafted the deed who has, in effect confirmed that he made a mistake in the drafting of the deed and the contemporaneous file notes which he made show that he properly recorded the settlor’s intention of the time.’

An open admission of blame by the draftsman will therefore be of assistance to the court in reaching ‘the right decision’. Not least, because in deciding whether such a mistake amounts to a clerical error, as Lord Hoffman said in Re B (Children) [2008] (which was not a will rectification case) at paragraphs 14 & 15, the court may have regard ‘to whatever extent appropriate, to inherent probabilities’.

Citing Re B (Children) in support, one of my submissions in this case, was that whilst the admission of inadvertence made by the solicitor did not presumptively prove that their mistake amounted to a clerical error within the meaning of s.20(1)(a), it was of persuasive value, in that there must be a high inherent probability that their drafting error did in fact amount to a ‘clerical error’ within the meaning of s.20(1)(a).

High Court of Justice, Chancery Division, Case No: HC-2016-000822. Date of judgment of Deputy Master Kaye: Monday 13 June 2016.

Counsel: Carl Islam, Averose Chancery Chambers in Leicestershire (www.ihtbar.com).

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.

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

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