Will Disputes: Who Pays?
Legal costs and who pays them in will disputes; this is not a topic that many people get excited about. But it is important because many people who may have a valid will dispute claim simply can’t afford to instruct a solicitor to act for them. Legal aid (which was only available in a limited number of cases) completely disappeared in 2013. Since then, contentious probate solicitors have been left with accepting cases largely where clients can either afford to pay as they go, or under ‘no win no fee’ agreements, also called Conditional Fee Agreements (CFAs).
CFAs are popular in the world of personal injury law; if someone has been injured, very often it’s a straightforward matter to prove fault and for the claimant to be awarded damages. The solicitor is paid, usually by way of a fixed fee, by the insurer of the person who was at fault, who also pays the damages to the injury victim. The solicitor receives in addition, a slice of the claimant’s damages, called a ’success fee’ for taking on the risk of losing. The theory goes that so long as lots of personal injury cases are taken on, on the whole, the success fees paid in successful cases recompenses the solicitor for the cases that they lose, i.e. when they don’t get paid.
On the other hand, CFAs are rarely viable in will disputes which tend to be complex, expensive, very dependent on the specific facts of the case and less predictable than personal injury law. The legal fees in will disputes are very often paid out of the estate of the deceased; insurance companies are not involved.
The judgement in the case of Wickham v Riley and others, following a hearing on 23-25 November 2020 illustrates both the pitfalls of running an Inheritance Act claim under a CFA and sadly, the ignorance of some members of the judiciary about funding.
Alexander Wickham and his twin sister Isabelle were the only children of Anthony Wickham. Anthony died in 2014 when the twins were 14 years old. His Will failed to provide properly for them and so they were entitled to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 for ‘reasonable financial provision’. As minors they had to be represented by an adult who was not their mother, because she did benefit from the estate and so had a ‘conflict of interest’; i.e. she stood to lose some of her share, if the children’s claim succeeded. So, another adult, Ruth Dore, acted for them as their ‘Litigation Friend’ and instructed solicitors, who agreed to act on a CFA basis.
It’s well established that minor children can bring a claim like this and entirely understandable that the solicitors acted under a CFA; the litigation friend would not have been willing to pay the solicitors, why would she? And the children had no funds of their own – this is why they had a claim in the first place.
And in fact, the solicitors did an excellent job; court proceedings were issued in 2017 and an agreement was reached with all the beneficiaries of the will in 2018 that the children should each receive £100,000 from their father’s estate, which was valued at around £500,000. At the last hurdle however, when a judge had to approve the terms of the settlement, Alexander and Isabelle’s mother Lisa refused to sign and said she wanted to take ‘tax advice’. The legal fees for the litigation friend’s solicitor were apparently £100,000 at that time – which does seem high – and reading between the lines it appears that the children’s mother decided that it would better all round if those fees didn’t have to be paid from the estate, along with the £200,000 to her children. She appears to have persuaded the twins – who were then crucially 18 years old – to abandon their claims, which they did in January 2019. Alexander is autistic and a subsequent assessment of his capacity determined that he was vulnerable, and his decisions were ‘significantly informed by his mother’s position’. He did, however, have mental capacity to make the decision to withdraw his claim, which he explained he did because:
“Mum would be liable for the costs and the reality is I would get Mum’s money anyway…eventually when Mum dies, I’ll get her money.”
By March 2020 Alexander (but not Isabelle) had changed his mind and decided that he did in fact want to pursue his claim. He was not represented by a solicitor at the hearing in November 2020 when his right to bring a claim was argued along with a number of other issues. The judge was clearly concerned about this and asked Alexander why he hadn’t taken legal advice, to be told that he was on Universal Credit and couldn’t find a solicitor as the case was too complicated. The judge thought that the case was unlikely to be too complicated but could accept that:
“securing a solicitor might pose some challenges in terms of funding (whether legal aid or a CFA would still be available I do not know).”
In all the circumstances the judge felt it was fair to give Alexander a second chance; he was given permission to issue a claim under the Inheritance Act claim even though he was out of time. It’s difficult to know what his prospects of success will be now that he is an adult rather than a minor but he certainly has a chance of being awarded something from the estate given that £100,000 had been ‘on the table’ in 2018.
One can certainly have sympathy for Alexander. But what about his former solicitors? No mention is made of the significant bill that is left unpaid.
I don’t expect much pity is ever felt for solicitors – and this is a highly unusual case. But funding matters because if solicitors refuse to take on cases where there is no reasonable prospect of being paid, where does that leave the very many deserving claimants like Alexander? I don’t suggest that legal aid should be re-introduced, but it is inequitable that the system demands so much risk falls on solicitors and their clients and wrong for judges not to inform themselves about the realities of litigation funding.