Different solicitors and different firms have all experienced the coronavirus pandemic differently.
Recently, I had the opportunity recently to speak to Ben Wilson, Partner in the Contentious Trust and Probate Team at JMW Solicitors to see how they were getting on during the pandemic.
Can you tell me a little about yourself and the team you’re part of?
I am a Partner in the Contentious Trusts and Probate team at JMW Solicitors. We are a busy team of seven, and we operate on a national level dealing purely with a wide range of contentious trusts and probate work.
The team is headed by Alison Parry and is recommended in the Legal 500 and Chambers and Partners High Net Worth Guide. I personally have been recommended in the Legal 500 for a number of years and am currently ranked as a “Next Generation Partner” for Contentious Trusts and Probate.
We pride ourselves on being approachable and personable – so any private client or family lawyers out there with any contentious trust or probate issues, feel free to pick up the phone or send an email at any time and we’ll be happy to talk through any issues with you (without charge!).
What sort of instructions do you take? And has there been a rise in instructions compared with the last 18months (pre-pandemic)?
We act for local, national and international clients on all aspects of inheritance and trust disputes. We act for trustees, executors, beneficiaries and third parties bringing and defending inheritance, trust and probate claims.
These instructions range from claims under the Inheritance Act and challenges to the validity of wills, to trustee disputes and cohabitation disputes under the Trusts of Land and Appointment of Trustees Act 1996.
Enquiries don’t seem to have slowed since the pandemic began!
Have you seen an increase in the number of contentious probate cases that have arisen?
Even without the pandemic I had noticed an increase in the amount of contentious probate enquiries. Unfortunately, a rise in unexpected deaths naturally means that there are more disputed estates as people have perhaps not undertaken estate planning and had wills drawn up or updated. Very often intestacy or outdated wills do not cater for a Deceased’s wishes, or do not leave adequate provision for family and dependants, meaning disputes arise.
In addition there have been a number of enquiries from cohabitees who have separated and wish to bring a claim under the Trust of Land and Appointment of Trustees Act 1996.
I have also fielded a number of enquiries relating to funeral and burial disputes.
As a result of the lockdown, lockdown 2.0 and lockdown 3 have you experienced any logjams when you’ve been progressing cases? Where were these and what was the reason for the delay?
Yes – the courts and Probate Registry were busy pre-pandemic, when you throw in three lockdowns and reduced working capacity, there follows an across the board backlog. Although I did see a recent encouraging article in the Law Society Gazette which said probate delays are falling despite the pandemic, a monumental effort by Probate Registry staff!
According to research conducted by the IRN, clients are happy to conduct video wills, and seemingly are more amenable to accepting the change in legislation than practitioners. What are your thoughts on video wills? Are they a contributing factor to the rise in contentious probate?
Estate planning is extremely important and I think video wills are a necessity in present circumstances. However I’d counsel caution when it comes to video wills. There is much greater scope for a validity challenge on the basis of lack of due execution, fraud, lack of capacity and undue influence. Further there are potential professional negligence claims against solicitors who do not ensure wills are properly executed.
The need for a contemporaneous file note by the will writer is (and always has been) paramount. The will writer should be aware of potential undue influence and capacity issues, and should expressly address those issues in the file note.
Some capacity assessors are doing online consultations and clients should be given this option when there is any question at all about capacity.
I am all for the use of technology in the law, however there is no substitute for a will writer seeing a client face to face when taking will instructions and ensuring a will is properly executed.
I anticipate video wills will make disputes more common.
You act for clients across the globe, has Brexit had implications on cases in which you’ve had to act for clients in different countries?
We are seeing the uncertainties caused by Brexit having an effect on many clients, particularly those whose assets include properties in other EU countries and who have a great deal of confusion and concern about the effect of Brexit on tax and estate planning. This in turn is having an effect on those seeking to challenge the distribution of estates concerning such assets and I would expect to see more disputes of this nature as time goes on.
