A Private Client Lawyer s Guide to Contentious Probate Conference 2015

Transcription

1 A Private Client Lawyer s Guide to Contentious Probate Conference September 2015 De Vere Holborn Bars - Central London In this modern era of complex family relationships, a growing elderly population with associated increase in diagnoses of dementia and a greater willingness to litigate, it is perhaps unsurprising that contentious probate is a current hot topic. This is understandably of concern to private client practitioners involved in will-drafting and/or the administration of estates. So, how do you prevent, or at least minimize, the risk of a claim arising in the first place? What do you do when, in spite of your best efforts, things get contentious? What lessons can we learn from past cases? Relevant to both non-contentious and contentious practitioners, this conference will answer these questions and ensure you are up-to-date on all the recent developments in the area. We would be grateful if you would spare a few moments to complete the Assessment Form which is of great benefit in the planning of future conferences.

2 Contents Programme 3 Chair 5 Speakers 5 Getting it right in the first place! 7 Risk management and costs protection for Personal Representatives and their solicitors 33 Practical Matters: Instructing an expert 41 IPFD Claims & How to Approach Them as PRs 43 Fending Accusations of Negligence 69 Contentious Probate Case Round up 81 Removal of PR s 95 1

3 Risk management and costs protection for Personal Representatives and their solicitors Notes prepared by Beatrice Calderbank, Withers LLP Even the most diligent and experienced of Personal Representatives can become embroiled in probate litigation. These notes will touch on: z The role and duties of a PR in probate litigation z Claims adverse to the estate z Staying neutral z Negotiation z Applications for directions how to get the protection of the court z Deadlines, dates and other traps z Renouncing probate z Removal of PRs The role and duties of a PR in probate litigation Source of Authority An executor derives his or her title from the will. Property vests from the testator's death. The grant of probate proves entitlement, but probate is said to relate back to the time of the testator s death. An administrator derives his or her title from the grant of administration. Authority derives from the appointment by the court. Prior to the appointment, the property vests in the Public Trustee. Subject to a number of statutory and common law exceptions, there is no relation back to the date of death. Litigation before grant Executors can commence proceedings on behalf of the estate and it will be sufficient to prove probate at trial Chetty v Chetty [1916] 1 AC 603, at 608 In order to protect the defendant in litigation, the court, on being shown that the executor has not obtained probate, will stay the proceedings until probate has been taken out and a reasonable time has elapsed after it has been submitted to the inspection of the defendant Webb v Adkins (1854) 14 CB 401. Suing the estate A named executor can, even before he accepts the appointment, be sued by a beneficiary or legatee (1) for an account of the estates and effects of the testator and (2) to have the assets secured re Stevens [1897] 1 Ch

4 Structure of 1975 Act claims 3 categories of people with an interest: Claimant(s) PR(s) Beneficiaries under the will/intestacy rules 3 Follow us Join us on Copyright Central Law Training Structure of 1975 Act claims PRs distribute estate to Beneficiaries 1975 Act claimant 4 Follow us Join us on Copyright Central Law Training

5 Fending Accusations of Negligence Notes prepared by Gavin Faber, Irwin Mitchell INTRODUCTION 1 In this Seminar, I will not provide an exhaustive review of the tort of negligence. That is a subject that justifies at least a full day. I will, however, provide some example cases where a private client lawyer has been exposed to claims, and try and identify what if anything, can be done to fend them off. 2 As you will see, claims often arise out of the most unusual facts and even where a practitioner has breached his duty of care, it may necessitate a series of most unfortunate events before they are exposed to a claim. 3 It must be noted that there is a significant difference between poor client service and delivery, and liability for professional negligence. It is important to differentiate between failure and omissions that fall short of acceptable standards and errors of judgement for which a professional need not be culpable. 4 There are various requirements to bringing a claim in negligence namely a duty of care, breach of duty, causation and loss. For the purpose of this seminar I will focus on the duty of care. It should also be noted that there may also be a contractual liability depending on the terms of your retainer. DUTY OF CARE 5 The standard test as to whether there has been negligence which involves the use of some special skill or competence, such as in will or trust preparation, has been described as the ordinary skilled man exercising and professing to have that special skill 1. 6 There are some points that I would wish to highlight. 7 The Trustee Act 2000 introduced a statutory duty of care 2 in respect of the exercise of certain powers of trustees and personal representatives. This duty of care expressly requires that regard must be had to any special knowledge or experience that the trustee or personal representative has, or holds himself out as having. 8 Whilst there is no definitive answer as yet, there is a real prospect of a Court imposing on certain members of the profession a higher duty than might be imposed upon the rest of that profession. 1 McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR Section 1 Trustee Act