Ideally once you have made a claim or received notice of a claim or Caveat, you would have taken actions to address to the potential claim and either dismissed or settled this without the need of court proceedings without a Warning or Appearance having been issued. Further information on Caveats and Warnings can be found here.
Negotiation and Mediation
This can be done by a number of ways such as direct negotiations between the parties, negotiations through solicitors when both parties have the benefit of legal advice on their position or through a mediation. Mediation usually involves the appointment of a third party mediator or will meet with the parties and their solicitors in order to try and reach an amicable solution.
However if a Caveat has been registered and this has progressed through to a Warning and Appearance then you will not be able to obtain a Grant of Probate or Letters of Administration without the court’s consent regardless of what is agreed between the parties.
If the dispute has not been resolved one party will need to make the application to court in order for the court to decide the issues and make an order for probate. If the dispute has been successfully resolved by the parties then they will still need to make a joint application to court in order to progress the matter.
Settling a Probate claim can be more complicated than settling other types of proceedings. This is due to the fact that in most proceedings the parties are free to agree how they settle a claim as this usually affects them only. However in a Probate or Wills dispute the court will need to take into account that any settlements will affect all beneficiaries of the estate and that the deceased’s wishes should also be taken into account. For this reason the courts may be unwilling to simply sign off any agreement made by the parties.
Application to court
If an agreement has been reached between the parties they will have the following options in order to move the matter forward, administer the estate and comply with the terms of the agreement.
These options are set out in Practice Direction 57 of the Civil Procedure Rules and confirm that once an Appearance had been issued a claim can only be resolved by:
- A trial of the claim with the parties providing written evidence to the court upon which the court decides the issues. This is of course the most time consuming and expensive option and essentially the last resort. This will however be the only option if the parties cannot agree how the matter will proceed.
- The court making an order that the claim he discontinued or dismissed under CPR 57.11. This process can only be used when the parties agree that the last Will is in fact the last valid Will and would therefore like to discontinue any proceedings and proceed to probate with this Will. The court will however need to be persuaded that there is no longer a valid dispute regarding the validity of the Will and if it is not it may insist on option one which is a full trial on the written evidence.
- The court can pronounce for or against a Will under section 49 of the Administration of Justice Act 1985. This is where the court can confirm the validity of a Will or former Will with the consent of all the beneficiaries of these Wills. This will not involve the need to see evidence regarding the validity of the Will but will only be possible if all of the beneficiaries of any Wills in question are in agreement.
In order to avoid lengthy expensive litigation the parties involved in Probate and Will disputes should consider taking early legal advice upon the merits of the claim and entering into negotiations and possible mediation.
Executors and Administrators do however need to be mindful that any resolution of a dispute may have a direct effect of the inheritance of any beneficiaries and therefore need to satisfied that they have acted appropriately in settling the matter to avoid any claims from beneficiaries.
If you would like more information relating to contentious probate matters, please contact stephen.stewart@elselaw.co.uk or call the office on 01283 526 200.