Contesting A Will No Win No Fee
Contesting A Will Funding
In considering whether to bring or defend a claim the party should consider where the funding is to come from and what the likelihood is of those costs being recovered from the other party.
Legal aid is not available for contesting a Will or Inheritance Act claims.
In the first instance, the parties should check whether they have legal expense insurance cover or another scheme that would pay or assist with the payment of fees. This could be under a specific legal expense policy or under a more general policy such as household insurance or credit card policy.
Contesting A Will No Win No Fee
If no funding is available then the solicitor may be prepared to consider acting under a Conditional Fee Agreement (CFA) otherwise known as Contesting A Will No Win No Fee or under a damage based agreement. Ordinarily, a solicitor will only consider acting under such an agreement if there is real merit and evidence to substantiate the claim. This assessment may not be carried out until some investigation has been undertaken e.g. on reviewing medical records, obtaining information regarding the circumstances of the execution of the Will, witness evidence etc.
When Contesting A Will No Win No Fee you should appreciate that:
- The solicitor agrees to waive his legal fees if the claim is unsuccessful but you will still be responsible for the opponent’s fees and the disbursements incurred in pursuing the claim.
- In the event of a settlement or award at Court the solicitor will be entitled to a success fee in addition to his costs of conducting the claim. The success fee is based on a percentage of the costs incurred by the solicitor and agreed in advance. Success fees cannot exceed 100% of the solicitors fees incurred.
- After the event insurance may be sought to cover your opponent’s fees and your disbursements in the event of a loss. Usually after the event insurance is available only where the claim is sizeable and there is strong evidence to support the claim (usually supported by a favourable opinion on the merits from counsel).
- Whilst the costs of conducting the case may be recovered in the event of success, neither the success fee nor any after the event insurance premium are recoverable from the losing party even where the claim is successful.
- Consideration should therefore be given as to whether, in the event of success, the success fee and insurance premium would negate any real benefit.
Other Funding Methods
Most claims are funded privately and solicitors would ordinarily ask for an up-front payment on account and deliver regular bills during the course of the claim. Disbursements will have to be paid when they fall due. In meritorious claims where the party simply lacks the funds to pursue the claim, a solicitor may agree to work on a deferred fee basis. The client is still responsible for legal fees whatever the outcome. The fees are not waived but the solicitor believes there are good prospects of winning the case and being paid out of any success. This latter arrangement is not without risk for the paying party or the solicitor and should be considered carefully.
In some circumstances, it may be possible to obtain litigation funding from a third party. The application process is rigorous and often the funder will want to see a favourable barrister’s opinion on the merits.
The funder will usually make a fund available which is drawn down by the solicitors during the course of the claim to meet their fees and disbursements. Interest is charged on the funds which are drawn down.
On conclusion, you will have to repay the funds utilised together with interest whatever the outcome. The fund cannot be used to meet your opponent’s fees.
Other Matters To Consider
The party engaging the solicitor is responsible for paying their solicitor at the conclusion of the case. If costs are awarded they are awarded to the party not his solicitor. It is the party’s responsibility to recover any costs awarded from the opponent and this may entail further legal action. Therefore just as it is the party’s responsibility to consider whether it can meet any adverse costs order in the event of a loss, the party should consider the opponent’s ability to meet any award of costs in his favour. If the opponent cannot pay the award he remains obliged to pay his solicitor for the fees incurred.
A client is entitled to receive estimates of likely fees and regular updates at not less than 6-month intervals. If they do not receive them they may be requested.
Talk to Tollers
Determining the best course for funding for contesting a will can appear daunting. Our experienced team can help, Talk to Tollers. We can help you to explore the best funding option for you, whether that’s through an existing insurance policy, Contesting A Will No Win No Fee basis or privately funded.