Estate Disputes

2 Matter Plans Included

ALERTS - Nil
Full Commentary - Estate Disputes - Acting for the Claimant
Reference materials
- Electronic Signing and Witnessing
- Looking to the Future
- 101 Succession Answers
- Article: Alternative dispute resolution
- Article: Costs actually
Overview and limitation periods

This commentary covers the law and procedure involved with the main types of claims brought against an estate, known as contentious probate business. Non-contentious probate business is covered in the Probate and Letters of Administration guides.
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Summary of the process

The usual steps in acting for a claimant in an estate dispute matter are:
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A. Getting the matter underway
- Client engagement
  
  Where a firm is to act for several administrators or executors, the clients should be advised that the firm cannot act, or continue acting, if a material conflict of interest arises. Although clients may suggest that one of them be the main point of contact, care should be taken when agreeing to ...
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- File cover sheet - Estate disputes
- To do list - Estate disputes - Acting for the claimant
- First steps
- Retainer instructions - Estate disputes - Acting for the claimant
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required - Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client enclosing Client Care and Terms of Business
- Enclosures for initial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Estate disputes - Acting for the claimant
  - Enclosure - Overview of the litigation process from a claimant's point of view
  - A summary of the dispute resolution process
- Funding
  
  Standard retainer Under a standard retainer, the solicitor’s costs and all disbursements and expenses are paid to the solicitor as they fall due.
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- If required - Conditional fee and damages-based agreements
  - Conditional fee agreement
    
    A conditional fee agreement is a no-win, no-fee arrangement based on the premise that a client is not responsible for the solicitor’s costs if the case is unsuccessful. Section 58(2)(a) of the Courts and Legal Services Act 1990 defines a conditional fee agreement as:
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  - Conditional fee agreement
  - Letter to client explaining barrister's fees
  - Letter to client giving informed consent to conditional fee agreement
  - Enclosure - Conditional fee agreements explained
  - Damages-based agreements
    
    A damages-based agreement is a contract between a solicitor and client that, if the client’s claim is successful, the solicitor will be entitled to a share of the recoveries. Damages-based agreements are different from conditional fee agreements in that they can be used only with claimant clients.
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  - Damages-based agreement
  - Letter to client enclosing damages-based agreement for signing
  - Enclosure - Damages-based agreements
  - Notice of funding of case or claim
- If required - Authority from previous solicitor
  - Letter to another solicitor with authority to obtain documents
  - Enclosure - Authority of executor to obtain documents from another solicitor
  - Enclosure - Authority of administrator to obtain documents from another solicitor
- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Preparatory casework and letters before claim
- Locating a copy of the will
  
  Apart from obtaining full details of the deceased, from the outset, it is essential to ascertain from the client:
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- If required - Locating a will
  - Letter to probate registry enclosing Form PA1S
  - Postal search of the probate records of England and Wales
  - Find a will or probate document
  - Letter to previous solicitor with authority to forward documents
  - Authority to forward documents and information
  - Letter to the personal representative's solicitor requesting a copy of the will
  - Letter to the personal representative requesting a copy of the will
  - Letter to the personal representative's solicitor requesting estate details
- Making a Larke v Nugus request
  
  If there is a will, it may be necessary to obtain a copy of it and details of any earlier will. An available option is to make a Larke v Nugus request to the will writer who prepared the will.
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- Letter to deceased’s solicitor with Larke v Nugus request
- Application for an order to produce estate documents
  
  A beneficiary of an estate may apply by summons to the probate registry that issued the grant of representation, for an order requiring the personal representative to produce an inventory and account for the estate: s 25(b) of the Administration of Estates Act 1925. An affidavit accompanies ...
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- If required - Application for an order to produce estate documents
  - Letter to court filing documents
  - Witness summons
  - Affidavit - Estates
  - Order for account and inquiry
  - Order for partnership account and inquiry
  - Result of partnership account and inquiry
- Subpoena for a will
  
  Sometimes a person holding a testamentary document will refuse to release it, causing delay, circumventing the proper administration of an estate, or thwarting the progress of litigation. If the claim has not yet started, the claimant can apply for a summons under r 50(1) of the ...
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- If required - Subpoena for a will
  - Letter to Probate Registry enclosing documents
  - Witness summons
  - Example content - Subpoena for a will
  - Example content - Affidavit in support of subpoena
  - Example content - Court order to examine holder of will
  - Letter to probate registry filing draft subpoena and supporting documents for settling
  - Letter of personal service upon person in possession of the will
- Testamentary capacity
  
  Challenges to a will on the basis that the testator lacked capacity are rarely successful. However, as a preliminary step, it is prudent to make enquiries of the deceased’s general practitioner and any social worker for copies of their records.
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- Medical records
  
  The Access to Health Records Act 1990 gives the personal representatives a statutory right of access to the medical records of the deceased and any person who may have a claim against the deceased’s estate. The right to access is restricted to records directly relevant to the claim: s 5(4).
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- If required - Obtaining records
  - Letter to client enclosing consent to obtain personal data for the deceased
  - Consent to provide information about a deceased person
  - Letter to deceased's doctor requesting medical records
  - Letter to deceased’s doctor requesting capacity report
  - Letter to deceased’s social worker requesting records
- DNA testing and paternity
  
  The High Court may order DNA testing of the deceased or direct that a party provides a saliva sample to establish paternity. The court may draw an adverse inference if the party refuses.
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- Deceased’s domicile
  
  The deceased’s domicile may need to meet certain requirements for a claim to proceed. For example, claims under the Inheritance (Provision for Family and Dependants) Act 1975 require the deceased’s domicile to be in England and Wales at the date of death: s 1(1). The deceased’s domicile is ...
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- Caveats
  
  If the grant of probate has yet to be issued and the client intendeds to challenge the terms of a will, the probate court must be notified by way of a caveat. A caveat will paralyse the administration of the estate as the court cannot issue a grant of representation until the caveat has been lifted.
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- If required - Caveats
  - Letter to Probate Registry enclosing documents
  - Application to stop a grant of representation, or extend a stop on a grant of representation
  - Application to extend a caveat on a grant of representation
  - Example content - Caveat
  - Warning to caveator
  - Appearance to warning or citation
  - Certificate of service
  - Letter of postal service of sealed warning on caveator
  - Letter of postal service of sealed appearance on caveator
  - Letter of postal service of sealed appearance on applicant for grant
- Citations
  
  A beneficiary or next of kin can use the citation process, being a court order or declaration calling on the executor to apply for probate formally. See s 112 of the Senior Courts Act 1981 and rr 46 and 47 of the Non-Contentious Probate Rules 1987. If the executor does not take steps to ...
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- If required - Citations
  - Letter to probate registry with draft citation and supporting documents
  - Example content - Citation to accept or refuse a grant
  - Example content - Citation to take probate
  - Example content - Citation to propound a will
  - Affidavit - Estates
  - Example content - Affidavit in support of citation to accept or refuse a grant
  - Example content - Affidavit in support of citation to take probate
  - Example content - Affidavit in support of citation to propound a will
  - Example content - Affidavit by citee accepting grant
  - Example content - Statement of truth in support of citation to accept or refuse a grant
  - Example content - Statement of truth in support of citation to take probate
  - Example content - Statement of truth in support of citation to propound a will
  - Letter of personal service of sealed copy citation on citee
  - Example content - Affidavit of service of sealed citation on citee
  - Example content - Statement of truth of service of sealed citation on citee
  - Certificate of service
  - Letter to probate registry filing document of service
  - Example content - Citation for advertisement
  - Letter to probate registry filing published advertisement and copies of the editions of the newspapers publishing
  - Letter to probate registry filing appearance
  - Appearance to warning or citation
  - Letter of personal service of sealed copy appearance on citee
  - Letter of postal service of sealed copy appearance on citee
  - Example content - General form of summons
  - Example content - Statement of truth by the citor after citation to accept or refuse a grant
  - Letter of service of court order upon the citee
- Standing searches
  
  Standing searches are governed by r 43 of the Non-Contentious Probate Rules 1987. Filing a standing search at the probate registry is a more practical alternative to lodging a caveat as it allows the estate administration to continue. A grant can continue to be extracted by the executors, ...
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- If required - Standing searches
  - Letter to probate registry enclosing Form PA1S
  - Postal search of the probate records of England and Wales
- Freezing injunctions
  
  A freezing injunction is an interim court order restraining a party from removing assets from the jurisdiction of England and Wales or from dealing with assets whether or not they are within the jurisdiction. The application is made to the probate court using Form N244, supported by an affidavit ...
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- If required - Freezing injunctions
  - Application notice
  - Affidavit - Estates
  - Order for an injunction (intended action)
  - Order for interim injunction
- Beddoe application for directions
  
  A Beddoe application is named after Re Beddoe, Downes v Cottam [1893] 1 Ch 547. It is an application to the court made by the executors or trustees of an estate requesting directions on whether a claim needs to be pursued or defended.
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- If required - Beddoe application
  - Claim form (CPR Part 8)
  - General form of order - Probate claim
  - Clause - Beddoe order
- Pre-action protocol and conduct
  
  It is necessary to ensure compliance with the requirements of the pre-action protocol before starting a probate claim. There is no specific pre-action protocol for probate claims, so the Practice Direction – PreAction Conduct and Protocols applies. This requires:
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- Practice Direction – Pre-Action Conduct and Protocols
- Code of conduct
  
  Although not compulsory, a good working knowledge of the Association of Contentious Trust & Probate Specialists (ACTAPS) code of conduct, known as The ACTAPS Code, may be beneficial. The timeline suggested by the code is:
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- The Association of Contentious Trust & Probate Specialists code of conduct
- Letter to defendant before action - Claim under the Inheritance (Provision for Family Dependants) Act 1975
- Letter to defendant before action - Claim for revocation of grant due to later will
- Letter to defendant before action - Claim for revocation of grant due to later marriage
- Letter to defendant before action - Failure to properly administer the estate
- Application for pre-action disclosure
  
  Disclosure may be required to investigate the deceased’s domicile. See Deceased’s domicile. Applications for pre-action disclosure are governed by r 31.16 of the Civil Procedure Rules or paragraph 31.16 in Section II of Practice Direction 57AD if the disclosure pilot for the Business ...
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- Application notice
C. Settling the matter
- Alternative dispute resolution
  
  A court has discretionary power to order parties in court proceedings to engage in alternative dispute resolution (ADR), James Churchill -v- Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Mr Churchill claimed against his council for damage caused to his property by Japanese knotweed. ...
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- Letter to the other side’s solicitor suggesting alternative dispute resolution
- If required - Staying proceedings
  - Letter to court filing documents
  - Application notice
  - Stay for alternative dispute resolution
- Early neutral evaluation
  
  Negotiations may be facilitated with the court’s assistance by requesting a non-binding early neutral evaluation. See paragraphs 10.17 to 10.24 of the Chancery guide. Subject to agreement by all parties, the court will arrange for an independent party with relevant expertise to provide an opinion ...
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- Clause - Early neutral evaluation order
- Chancery financial dispute resolution
  
  A chancery financial dispute resolution process is a court service offering an opinion and a negotiated settlement exercise. See paragraphs 10.25-10.33 of the Chancery Guide. A chancery master or district judge will usually oversee the procedure and give directions on exchanging settlement ...
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- Clause - Chancery financial dispute resolution order
- Offers to settle
  
  There are opportunities to settle disputes, even when the parties’ relationship has soured. Settling the dispute can reduce costs and stress for all parties.
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- Letter to defendant’s solicitor making Calderbank offer
- Deed of settlement of a claim under the Inheritance (Provision for Family and Dependants) Act 1975
- Letter to court filing documents
- Order for approval of compromise
- Order in probate claim involving compromise
- Part 36 offers
  
  Part 36 of the Civil Procedure Rules provides for making an offer which will be treated without prejudice except as to costs. This means that the fact such an offer has been made together with its terms must not be communicated to the trial judge until the case has been decided: r 36.16. ...
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- If required - Part 36 offers
  - Enclosure - Part 36 offers
  - Letter to client suggesting making a Part 36 offer
  - Offer to settle (Section I Part 36)
  - Letter to other side's solicitor making Part 36 offer
  - Letter to client enclosing copy Part 36 offer made
  - Letter to client enclosing copy Part 36 offer received
- Discontinuance and Tomlin orders
  
  A probate claim may be discontinued on application to the court by either the claimant or defendant: r 57.11(2) of the Civil Procedure Rules. Paragraphs 6.1 and 6.2 of Practice Direction 57 provide that the court may:
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- If required - Tomlin order
  - Letter to court filing documents
  - Application notice
  - Tomlin order - 1975 Act
  - Notice of discontinuance
  - Clause - Order for discontinuance of action or grant
D. Claims including content for statements of case
- Types of claims
  
  The main types of claims brought against an estate are:
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- Duties of personal representatives
  
  The personal representative or trustee of an estate has a duty to manage and, if possible, compromise any claims against the estate. This can be an onerous duty, involving a balancing exercise between appreciating the merits and likelihood of success and minimising the impact of any claim on the ...
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- Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975
  - Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975
    
    A claim under the Inheritance (Provision for Family and Dependants) Act 1975 is governed by Section IV of Part 57 of the Civil Procedure Rules and Part IV of Practice Direction 57. It is fundamental to assess whether the terms of the will or the rules of intestacy have failed to ...
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  - Letter to court filing documents
  - Claim form (CPR Part 7)
  - Example content - Particulars of claim - Inheritance (Provision for Family and Dependants) Act 1975
  - Order granting permission to make application under the Inheritance (provision for family and dependants) Act 1975 after time expired
  - Order for claimant to be defendant - Inheritance (provision for family and dependants) Act 1975
  - Orders for provision under the Inheritance (provision for family and dependants) Act 1975
- Disputing the will
  - Disputing the will
    
    A claim is for the court to determine whether a will is valid in whole or in part and can be brought by an interested person, being:
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  - Letter to court filing documents
  - Claim form (probate claim)
  - Example content - Claim by executor to propound will
  - Example content - Claim by executor to propound lost will
  - Clause - Claim by executor or beneficiary to propound will - Defendant is interested on an intestacy
  - Clause - Claim by executor to propound lost will - Defendant is executor under an earlier will
  - Clause - Witness statement or affidavit about knowledge of testamentary documents
  - Exhibit sheet to witness statement - Probate matters
- Rectification of a will
  - Rectification of a will
    
    Section 20 of the Administration of Justice Act 1982 allows the court to order that a will be rectified to remedy a failure to carry out the testator’s intentions due to either a clerical error or a failure to understand their instructions. In considering rectification, the court needs to ...
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  - Letter to court filing documents
  - Claim form (probate claim)
  - Clause - Particulars of claim for rectification of a will claim
  - Clause - Order for rectification of a will
- An action to establish an interest in an estate
  - An action to establish an interest in an estate
    
    A person cannot issue a probate claim unless they have an interest in the deceased’s estate. Interest actions arise when the interest of the person claiming the right to a grant of representation or opposing a will is disputed.
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  - Letter to court filing documents
  - Claim form (probate claim)
  - Clause - Particulars of claim - Interest action
  - Clause - Witness statement or affidavit about knowledge of testamentary documents
  - Exhibit sheet to witness statement - Probate matters
- Substituting or removing a personal representative
  - Substituting or removing a personal representative
    
    Section 50 of the Administration of Justice Act 1985 empowers the High Court to appoint, substitute, or remove a personal representative. Applications for their appointment, substitution, or removal are governed by r 57.13 of the Civil Procedure Rules and require that:
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  - Letter to court filing documents
  - Claim form (CPR Part 7)
  - Order removing personal representative or appointing substitute
  - Affidavit - Estates
  - Clause - Affidavit for an order for grant under s 116 of the Senior Courts Act 1981
- Revocation of a grant
  - Revocation of a grant
    
    A grant of representation can be revoked. There are grounds for revocation when:
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  - Letter to court filing documents
  - Application notice
  - Affidavit - Estates
  - Clause - Affidavit for revocation of grant by consent
  - Revocation or refusal of revocation of grant of probate
- Proceedings under the Presumption of Death Act 2013
  - Proceedings under the Presumption of Death Act 2013
    
    The Presumption of Death Act 2013 governs the eligibility and procedure for obtaining a declaration that a missing person is presumed dead. The court’s jurisdiction is dependent on the following:
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  - Making a declaration
    
    The court makes a declaration of presumed death, specifying a date and time of death if it is satisfied that the missing person has died or has not been known to be alive for at least 7 years. The Secretary of State can vary the seven-year period. The declaration becomes legally effective once ...
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  - Letter to General Register Office requesting a certified copy of presumed death certificate
  - Issuing the claim
    
    The court will automatically hear applications for a declaration from the missing person’s spouse, civil partner, parent, child, or sibling. Any other person can apply if the court considers that they have a sufficient interest. The procedure for applying for a declaration is set out in ...
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  - Letter to court filing application for declaration of presumed death
  - Claim form (CPR Part 8)
  - Letter notifying an application under the Presumption of Death Act 2013
  - Notice and advertisement of claim
    
    An advertisement is placed in a print or online newspaper that covers the missing person’s last known usual address within 7 days of proceedings being issued. Standard wording is required. This is set out in Example Content – Advertisement Pursuant to Presumption of Death Act 2013 on the ...
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  - Example content - Advertisement pursuant to Presumption of Death Act 2013
  - Letter to court filing evidence of advertisement pursuant to the Presumption of Death Act 2013
  - Right to intervene
    
    The right to intervene in an application for a presumption of death order is governed by r 57.22 of the Civil Procedure Rules. Section 11 of the Presumption of Death Act 2013 provides that the missing person’s spouse, civil partner, parent, child, sibling, or the Attorney General, can ...
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  - Variation or revocation of a declaration of presumed death
    
    The court has the discretionary power to amend or revoke a declaration of presumed death if satisfactory evidence is produced that the missing person was seen alive after the date of the previously issued declaration. An order varying the declaration does not revive a marriage or civil partnership ...
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- Proceedings under the Guardianship (Missing persons) Act 2017
  - Proceedings under the Guardianship (Missing Persons) Act 2017
    
    The Guardianship (Missing Persons) Act 2017 provides a statutory procedure for a court to appoint a guardian to deal with the legal and financial affairs of a person who has gone missing. The court’s jurisdiction applies when:
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  - Making an application for an order
    
    Section VI of Part 57 of the Civil Procedure Rules and paragraph 2.1 of Practice Direction 57C govern the application procedure. A guardianship order for a missing person may be sought by any of the following:
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  - Issuing the application
    
    Applications can be sent to the Chancery Division of the High Court or online using the E-Filing system. Applications for guardianship orders, applications to vary or revoke them, and any other applications relating to guardianship orders, are made to the Chancery Division or the Family Division of ...
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  - Letter to court filing application for guardianship order
  - Claim form (CPR Part 8)
  - Example content - Witness statement pursuant to the Guardianship (Missing Persons) Act 2017
  - Letter notifying of application under the Guardianship (Missing Persons) Act 2017
  - Notice and advertisement of claim
    
    An advertisement is placed in a print or online newspaper that covers the missing person’s last known usual address within 7 days of proceedings being issued. Standard wording is required. This is set out in Example Content – Advertisement Pursuant to Presumption of Death Act 2013 on the ...
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  - Example content - Advertisement pursuant to the Guardianship (Missing Persons) Act 2017
  - Letter to court filing evidence of advertisement pursuant to the Guardianship (Missing Persons) Act 2017
  - Termination of a guardianship order
    
    A guardianship will automatically terminate when:
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  - Right to intervene
    
    The right to intervene in an application for a presumption of death order is governed by r 57.22 of the Civil Procedure Rules. Section 11 of the Presumption of Death Act 2013 provides that the missing person’s spouse, civil partner, parent, child, sibling, or the Attorney General, can ...
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E. Court practice and procedure
- The High Court and chancery district registries
  
  All probate claims in the High Court are specifically assigned to the Chancery Division, forming part of the Business and Property Courts of England and Wales. High Court judges hold hearings in the Chancery Division in London. Other issues, such as case management, listing, and most interim ...
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- The County Court
  
  The County Court’s limited jurisdiction covers probate claims relating to a grant or revocation of probate or administration of an estate and applies where:
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- Before issuing proceedings
  
  Before issuing proceedings, consideration is to be given to whether:
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- Limitation issues
  
  If a matter is close to its limitation date, it is possible to issue the proceedings but not serve them as a protective measure. This will allow further instructions, investigations, or negotiations if possible. The claim form for issue is to be sent with a covering letter requesting the court does ...
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- If required - Limitation issues
  - Standstill agreement to extend limitation
  - Standstill agreement to suspend limitation
- Part 7 claims – Commencing proceedings
  
  Most estate dispute claims are issued under Part 7 of the Civil Procedure Rules supplemented by Practice Directions 7A and 7E, which deal with online claims. Part 7 proceedings commence when the court issues a claim form at the claimant’s request. Details required for the claim form are:
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- Part 8 claims – Alternative procedure for claims
  
  Part 8 of the Civil Procedure Rules is an alternative procedure to the usual method of bringing a claim pursuant to Part 7. It is aimed at disputes where a claimant seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact. For example, it can be used ...
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- If required - Part 8 of the Civil Procedure Rules
  - Preparing the Part 8 Claim Form
    
    The correct form is N208 Claim Form (Part 8). Rule 8.2 is clear that the claim form must include:
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  - Claim form (CPR Part 8)
  - Serving the issued Part 8 Claim Form
    
    If circumstances dictate, the claim form can be issued without naming defendants. If so, it need not be served on anyone else: Rule 8.2A. Otherwise, r 7.5 provides for service of the claim form, which is the same as service of a Part 7 claim:
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  - Letter to defendant serving claim
  - Letter to defendant's solicitor serving claim
  - Acknowledgement, defence, and counterclaim
    
    Defendants respond to the claim by filing an acknowledgment of service, whether or not they wish to defend the claim. The period for filing the acknowledgment of service is:
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  - Evidence
    
    Under r 8.5, written evidence should be filed with the Claim Form or Acknowledgment of Service. However, either party may apply to the court for an extension of time to file and serve additional evidence. For more information, see Disclosure and evidence.
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  - Trial
    
    The court may hear and dispose of the case or give directions at the hearing. For more information, see Final hearing.
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- Electronic filing
  
  Courts and tribunals are increasingly developing ways to commence and manage cases electronically. In the Royal Courts of Justice and Upper Tribunals, a digital electronic filing system called Courts Electronic Filing System (CE-File) allows for the digital issue and management of cases. It ...
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F. Statements of case, filing and service
- Starting a claim
  
  Practitioners are reminded that electronic filing using the CE-File platform is compulsory in the Chancery Division for commencing proceedings and filing documents. See Electronic filing. Claims are issued out of the High Court of Justice, Chancery Division, or in a District Registry and are ...
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- Clause - Particulars of claim
- Letter to court filing documents
- Application notice
- Claim form (probate claim)
- Claim form (CPR Part 8)
- Initial disclosure
  
  When a party files and serves its particulars of claim or defence, a list of documents is also served together with copies of the documents in electronic format. Only key documents need to be served initially, with a cap of 1,000 pages or 200 documents, whichever is the larger.
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- Letter to client regarding initial disclosure under the disclosure of documents requirements
- Enclosures for letter regarding initial disclosure
  - Enclosure - Disclosure of Documents
  - Disclosure review document
  - Disclosure review document for extended disclosure in less complex claims
- Initial disclosure list of documents
- Claimant service
  
  It may be preferable for the claimant’s practitioner to effect service on behalf of the claimant. Failure to properly serve the claim form can be fatal to a claim. See Part 6 of the Civil Procedure Rules. If claimant service is required, the appropriate box must be checked during the online filing ...
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- Letter to defendant serving claim
- Letter to defendant's solicitor serving claim
- Enclosures for the letter serving claim - Response pack
  - Response pack
  - Admission (unspecified amount, non-money and return of goods claims)
  - Admission (specified amount)
  - Defence form
  - Defence and counterclaim (unspecified amount, non-money and return of goods claims)
  - Defence and counterclaim (specified amount)
- A defendant’s response
  
  Acknowledgment of service In a probate claim the defendant must file an acknowledgment of service regardless of whether they intend to defend the claim or not. The period for filing an acknowledgment of service is:
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- Example content - Reply to defence
- Extension of time
  
  If the defendant needs more time to respond, consent for an extension should be sought from the claimant before the time limits expire. Rule 2.11 of the Civil Procedure Rules allows parties to agree to time limit variations between themselves. Rule 15.5 notes that the parties may agree to ...
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- Letter to defendant's solicitor responding to request for extension of time
- Counterclaims and additional claims
  
  Part 20 of the Civil Procedure Rules sets out the requirements for counterclaims by the defendant against the claimant or a third party and other additional claims such as the defendant seeking contributions or indemnity from a third party. The rule commences by effectively reiterating the ...
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G. Interim applications
- Security for costs
  
  As part of a response, the defendant may apply to the court for security for costs under r 25.12 of the Civil Procedure Rules. This is an application to require the claimant to pay a sum of money into court to protect the defendant’s ability to claim their costs back if they are successful in ...
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- Security of receiver or of administrator pending determination of a probate claim
- Summary judgment or strike out
  
  provides the court may give summary judgment against a claimant or defendant on the whole of a claim or a particular issue or order a statement of case to be struck out if it considers that:
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- Letter to client with advice about summary judgment
- Application notice
- Unless order
- Order for disposal hearing: Part 8 Claims
- Notice of judgment or order to non-parties
- Letter to court filing documents
- If required - Evidence
  - Letter to court filing written evidence
  - Letter to other side's solicitor serving written evidence
- Letter to client after summary judgment success
H. Case management and directions
- Case management
  
  Initial assessment If the High Court issues the claim, it will be allocated to a master. If issued by a District Registry, it will be allocated to a district judge.
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- Transfer of claims from the High Court to the County Court
  
  The County Court’s jurisdiction being limited to £30,000 does not prevent the High Court from exercising its statutory power to transfer a probate claim to the County Court: s 40(2) of the County Courts Act 1984, subject to the following criteria as set out in r 30.3(2) of the Civil ...
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- Directions questionnaires
  
  Each party is required to file a completed Directions Questionnaire (Fast track and Multi-track) Form N181 no later than 28 days after service of the allocation notice referred to above. The Directions Questionnaire (Fast track and Multi-track) Form N181 covers the following matters:
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- Directions questionnaire (fast track, intermediate track and multi-track)
- Enclosures for directions questionnaire - Directions, disclosure and costs
  - Draft chancery case management directions
  - Disclosure review document
    
    As probate claims fall within the disclosure requirements set out in Practice Direction 57AD and the parties to the claim must agree on a draft list of issues for disclosure, paragraph 7.10 of the practice direction, and file a disclosure review document 5 days before the case ...
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  - Disclosure review document
  - Disclosure review document for extended disclosure in less complex claims
  - Costs budgets
    
    Costs management is governed by Part 3 of the Civil Procedure Rules, Practice Direction 3E, and chapter 6 of the Chancery Guide. In multi-track cases, r 3.13 requires the parties to file a costs budget unless the court otherwise orders costs budgets:
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  - Costs budget (Precedent H) and budget discussion report (Precedent R)
  - Precedent T - (budget variation summary sheet)
  - Using the automated app – Precedent H – Costs budget
  - Using the automated app – Precedent S – Bill of costs
- Letter to client confirming costs budget
- Letter to defendant's solicitor serving costs budget
- Case and costs management conference
  
  The case management conference allows the judge to:
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- Costs management order (For use where budgets have not been wholly agreed)
- Directions
  
  Directions are given to parties by the court to assist trial preparation. They are intended to:
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- Multi-track standard directions
- Listing questionnaire
  
  Also known as the pre-trial checklist and effectively a second part of the directions procedure, they seek information from the parties to enable the court to list the case and fill any gaps in getting the case from directions to trial.
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- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Application notice
- General form of order - Probate claim
I. Disclosure and evidence
- Disclosure
  
  Disclosure is the stage in a case where parties share with the other side and the court the information on which they are basing their case, together with anything else that affects it. Disclosure is in keeping with the overriding objective of the Civil Procedure Rules, which is to enable the case ...
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- Initial disclosure
  
  When a party files and serves its particulars of claim or defence, a list of documents is also served together with copies of the documents in electronic format. Only key documents need to be served initially, with a cap of 1,000 pages or 200 documents, whichever is the larger.
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- Letter to client regarding initial disclosure under the disclosure of documents requirements
- Enclosures for letter regarding initial disclosure
  - Enclosure - Disclosure of Documents
  - Disclosure review document
  - Disclosure review document for extended disclosure in less complex claims
- Initial disclosure list of documents
- If required - Order to hand out documents for examination
  - Letter to court filing documents
  - Application notice
  - Handing out testamentary documents for examination
- Extended disclosure
  
  Within 28 days of the initial disclosure, the parties state if they believe further disclosure is required. This will only be ordered where it is appropriate to resolve an issue. If the parties decide that extended disclosure is necessary, a request is made to the court using a joint Appendix ...
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- Letter to client regarding extended disclosure
- Disclosure certificate
- Letter to court filing documents
- Evidence
  
  Under r 8.5, written evidence should be filed with the Claim Form or Acknowledgment of Service. However, either party may apply to the court for an extension of time to file and serve additional evidence. For more information, see Disclosure and evidence.
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- Library of evidence documents
  - Proof of evidence
  - Example content - Witness statement
  - General form of affidavit
  - Clause - Affidavit for civil matters
  - Exhibit sheet for affidavits - Civil matters
  - Notice of intention to rely on hearsay evidence
  - Notice to admit facts
- Letter to court filing written evidence
- Letter to other side's solicitor serving written evidence
- If required - Expert witnesses
  - Expert witnesses
    
    Evidence from an expert who has been instructed to give or prepare evidence on any relevant matter in which they are qualified is admissible, despite the usual rule against opinion evidence being admitted: s 3 of the Civil Evidence Act 1972. See Part 35 of the Civil Procedure Rules and ...
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  - Letter to expert requesting report
  - Letter to client enclosing expert's report
  - Letter to court filing expert's report
  - Letter to other side's solicitor serving expert's report
J. Final hearing and costs
- Preparation for the final hearing
  
  Pre-trial preparation The court will send a listing questionnaire or pre-trial checklist for filing no more than 8 weeks before the trial date. This deals with the following matters:
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- Letter to counsel enclosing brief
- Brief to counsel - Civil matters
- Letter to client advising of court hearing date
- Letter to court advising client will not attend
- Letter to witness advising hearing date
- Multi-track standard directions
- Pre-trial preparation
  
  The court will send a listing questionnaire or pre-trial checklist for filing no more than 8 weeks before the trial date. This deals with the following matters:
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- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Court bundles
  
  A court bundle is an indexed collection of documents that the parties will rely on during the hearing. The trial bundle includes all documents filed in court, leaving out irrelevant documents, even if disclosed in the proceedings. See r 39.5 of the Civil Procedure Rules, of Practice ...
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- County Court, High Court and Appeal Court - Trial bundle cover page
- County Court, High Court and Appeal Court - Trial bundle index
- Case summary
- Chronology - Civil matters
- Letter to other side's solicitor enclosing index to trial bundle
- Letter to other side's solicitor enclosing trial bundle
- Letter to court filing trial bundle
- Costs for the final hearing
  
  Costs are at the court’s discretion. Usually the unsuccessful party will pay the costs of the successful party. The court also has the discretion to make other costs orders, especially where a party has been uncooperative: r 44.2. The basis of assessment will be either standard or indemnity. ...
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- Costs budget (Precedent H) and budget discussion report (Precedent R)
- Precedent T - (budget variation summary sheet)
- Using the automated app – Precedent H – Costs budget
- Using the automated app – Precedent S – Bill of costs
- Final hearing
  
  Preparation for the final hearing
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- After the final hearing
  
  The judge will deliver judgement orally. Parties can obtain a transcript of the judgment by emailing TranscriptRequest.Rolls@justice.gov.uk. The obligation to enforce the judgment or order is on the successful party to the claim.
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- If required - Chancery division enforcement
  - Interim charging order
  - Final charging order
  - Enforcing charging order (single defendant)
  - Enforcing charging order (multiple defendants)
  - Variation of trusts: confidentiality order
  - Common form of order for sale
  - Order nominating person to execute sale
  - Result of account of money due
K. Finalising the matter
- Settled matters
  
  If a matter is settled, practitioners are required to advise the court immediately. Until terms of the settlement, consent orders, or a notice of discontinuance are filed, the parties are required to attend before the court if the matter is listed. See Settling the matter above.
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- Advising the client
  
  In advising the client on matters post judgment, much will depend on the court’s order and therefore guidance in this section can only be general. Broadly, the 2 main aspects on which the client is to be advised are:
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- Letter to client advising successful outcome and enclosing invoice
- Letter to client advising unsuccessful outcome with advice about appeal and enclosing invoice
- Letter to client finalising the matter - Successful estate dispute
- Letter to client finalising the matter - Unsuccessful estate dispute
- Example invoice
- Invoice recital - Estate disputes - Acting for the claimant
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Estate Disputes - Acting for the Defendant
Reference materials
- Electronic Signing and Witnessing
- Looking to the Future
- 101 Succession Answers
- Article: Alternative dispute resolution
- Article: Costs actually
Overview and limitation periods

This commentary covers the law and procedure involved with the main types of claims brought against an estate, known as contentious probate business. Non-contentious probate business is covered in the Probate and Letters of Administration guides.
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Summary of the process

The usual steps in acting for a defendant in an estate dispute matter are:
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A. Getting the matter underway
- Client engagement
  
  Where a firm is to act for several administrators or executors, the clients should be advised that the firm cannot act, or continue acting, if a material conflict of interest arises. Although clients may suggest that one of them be the main point of contact, care should be taken when agreeing to ...
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- File cover sheet - Estate disputes
- To do list - Estate disputes - Acting for the defendant
- First steps
- Retainer instructions - Estate disputes - Acting for the defendant
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required - Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client enclosing Client Care and Terms of Business
- Enclosures for initial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Estate disputes - Acting for the defendant
  - Enclosure - Overview of the litigation process from a defendant's point of view
  - A summary of the dispute resolution process
- Funding
  
  Standard retainer Under a standard retainer, the solicitor’s costs and all disbursements and expenses are paid to the solicitor as they fall due.
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- If required - Conditional fee agreements
  - Conditional fee agreement
    
    A conditional fee agreement is a no-win, no-fee arrangement based on the premise that a client is not responsible for the solicitor’s costs if the case is unsuccessful. Section 58(2)(a) of the Courts and Legal Services Act 1990 defines a conditional fee agreement as:
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  - Conditional fee agreement
  - Letter to client explaining barrister's fees
  - Letter to client giving informed consent to conditional fee agreement
  - Enclosure - Conditional fee agreements explained
  - Notice of funding of case or claim
- If required - Authority from previous solicitor
  - Letter to another solicitor with authority to obtain documents
  - Enclosure - Authority of executor to obtain documents from another solicitor
  - Enclosure - Authority of administrator to obtain documents from another solicitor
- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Estate dispute claims
- Types of claims
  
  The main types of claims brought against an estate are:
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- Duties of personal representatives
  
  The personal representative or trustee of an estate has a duty to manage and, if possible, compromise any claims against the estate. This can be an onerous duty, involving a balancing exercise between appreciating the merits and likelihood of success and minimising the impact of any claim on the ...
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- Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975
  
  A claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act) is governed by Part IV of Part 57 of the Civil Procedure Rules and Part IV of Practice Direction 57. It is fundamental to assess whether the terms of the will or the intestacy rules have ...
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- Disputing the will
  
  A claim for the court to determine whether a will is valid in whole or in part and can be brought by an interested person, being:
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- Revocation of the will
  
  The applicant seeks to establish that the will has been revoked by:
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- An action to establish an interest in an estate
  
  A person cannot issue a probate claim unless they have an interest in the deceased’s estate. Interest actions arise when the interest of the person claiming the right to a grant of representation or opposing a will is disputed.
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- Substituting or removing a personal representative
  
  Section 50 of the Administration of Justice Act 1985 empowers the High Court to appoint, substitute, or remove a personal representative. Applications for their appointment, substitution, or removal are governed by r 57.13 of the Civil Procedure Rules and require that:
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- Revocation of a grant
  
  A grant of representation can be revoked. There are grounds for revocation when:
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- Proceedings under the Presumption of Death Act 2013
  
  The Presumption of Death Act 2013 governs the eligibility and procedure for obtaining a declaration that a missing person is presumed dead. The court’s jurisdiction is dependent on the following:
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- Letter to court filing challenge to application for declaration of presumed death
- Acknowledgment of service (Part 8 claim)
- Letter to claimant by intervener to presumption of death declaration
- Proceedings under the Guardianship (Missing Persons) Act 2017
  
  The Guardianship (Missing Persons) Act 2017 provides a statutory procedure for a court to appoint a guardian to deal with the legal and financial affairs of a person who has gone missing. The court’s jurisdiction applies when:
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C. Preparatory casework
- Locating a copy of the will
  
  Apart from obtaining full details of the deceased, from the outset, it is essential to ascertain from the client:
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- If required - Locating a will
  - Letter to probate registry enclosing Form PA1S
  - Postal search of the probate records of England and Wales
  - Find a will or probate document
  - Letter to previous solicitor with authority to forward documents
  - Authority to forward documents and information
- Making a Larke v Nugus request
  
  If there is a will, it may be necessary to obtain a copy and details of any earlier will. An available option is to make a Larke v Nugus request to the will writer who prepared the will.
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- Letter to solicitor with Larke v Nugus request
- Application for an order to produce estate documents
  
  A beneficiary of an estate may apply by summons to the probate registry, that issued the grant of representation, for an order requiring the personal representative to produce an inventory and account for the estate: s 25(b) of the Administration of Estates Act 1925. An affidavit accompanies ...
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- If required - Application for an order to produce estate documents
  - Letter to court filing documents
  - Witness summons
  - Affidavit - Estates
  - Order for account and inquiry
  - Order for partnership account and inquiry
  - Result of partnership account and inquiry
- Subpoena for a will
  
  Sometimes a person holding a testamentary document will refuse to release it, causing delay, circumventing the proper administration of an estate, or thwarting the progress of litigation. If the claim has not yet started, the claimant can apply for a summons under r 50(1) of the ...
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- If required - Subpoena for a will
  - Letter to Probate Registry enclosing documents
  - Witness summons
  - Example content - Subpoena for a will
  - Example content - Affidavit in support of subpoena
  - Example content - Court order to examine holder of will
  - Letter to probate registry filing draft subpoena and supporting documents for settling
  - Letter of personal service upon person in possession of the will
- Testamentary capacity
  
  Challenges to a will on the basis that the testator lacked capacity are rarely successful. However, as a preliminary step, it is prudent to make enquiries of the deceased’s general practitioner and any social worker for copies of their records.
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- Medical records
  
  The Access to Health Records Act 1990 gives the personal representatives a statutory right of access to the medical records of the deceased and any person who may have a claim against the deceased’s estate. The right to access is restricted to records directly relevant to the claim: s 5(4).
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- If required - Obtaining records
  - Letter to client enclosing consent to obtain personal data for the deceased
  - Consent to provide information about a deceased person
  - Letter to deceased's doctor requesting medical records
  - Letter to deceased’s doctor requesting capacity report
  - Letter to deceased’s social worker requesting records
- DNA testing and paternity
  
  The High Court may order DNA testing of the deceased or direct that a party provides a saliva sample to establish paternity. The court may draw an adverse inference if the party refuses.
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- Deceased’s domicile
  
  The deceased’s domicile may need to meet certain requirements for a claim to proceed. For example, claims under the Inheritance (Provision for Family and Dependants) Act 1975 require the deceased’s domicile to be in England and Wales at the date of death: s 1(1). The deceased’s domicile is ...
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- Caveats
  
  If the grant of probate has yet to be issued and the client intends to challenge the terms of a will, the probate court must be notified by way of a caveat. A caveat will paralyse the administration of the estate as the court cannot issue a grant of representation until the caveat has been lifted.
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- If required - Caveats
  - Letter to client regarding the caveat
  - Letter to caveator's solicitor for details
  - Warning to caveator
  - Appearance to warning or citation
  - Certificate of service
  - Letter of postal service of sealed warning on caveator
  - Letter of postal service of sealed appearance on applicant for grant
- Citations
  
  A beneficiary or next of kin can use the citation process, being a court order or declaration calling on the executor to apply for probate formally. See s 112 of the Senior Courts Act 1981 and rules 46 and 47 of the Non-Contentious Probate Rules 1987. If the executor does not take steps ...
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- If required - Citations
  - Letter to probate registry with draft citation and supporting documents
  - Example content - Citation to accept or refuse a grant
  - Example content - Citation to take probate
  - Example content - Citation to propound a will
  - Affidavit - Estates
  - Example content - Affidavit in support of citation to accept or refuse a grant
  - Example content - Affidavit in support of citation to take probate
  - Example content - Affidavit in support of citation to propound a will
  - Example content - Affidavit by citee accepting grant
  - Statement of truth - Estates
  - Example content - Statement of truth in support of citation to accept or refuse a grant
  - Example content - Statement of truth in support of citation to take probate
  - Example content - Statement of truth in support of citation to propound a will
  - Letter of personal service of sealed copy citation on citee
  - Example content - Affidavit of service of sealed citation on citee
  - Example content - Statement of truth of service of sealed citation on citee
  - Certificate of service
  - Letter to probate registry filing document of service
  - Example content - Citation for advertisement
  - Letter to probate registry filing published advertisement and copies of the editions of the newspapers publishing
  - Letter to probate registry filing appearance
  - Appearance to warning or citation
  - Letter of personal service of sealed copy appearance on citee
  - Letter of postal service of sealed copy appearance on citee
  - Example content - General form of summons
  - Example content - Statement of truth by the citor after citation to accept or refuse a grant
  - Letter of service of court order upon the citee
- Standing searches
  
  Standing searches are governed by r 43 of the Non-Contentious Probate Rules 1987. Filing a standing search at the probate registry is a more practical alternative to lodging a caveat as it allows the estate administration to continue. A grant can continue to be extracted by the executors, ...
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- If required - Standing searches
  - Letter to probate registry enclosing Form PA1S
  - Postal search of the probate records of England and Wales
- Freezing injunctions
  
  A freezing injunction is an interim court order restraining a party from removing assets from the jurisdiction of England and Wales, or from dealing with assets whether or not they are within the jurisdiction. The application is made to the probate court using form N244, supported by an affidavit ...
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- If required - Freezing injunctions
  - Application notice
  - Affidavit - Estates
  - Order for an injunction (intended action)
  - Order for interim injunction
- Beddoe application for directions
  
  A Beddoe application is named after Re Beddoe, Downes v Cottam [1893] 1 Ch 547. It is an application to the court made by the executors or trustees of an estate requesting directions on whether a claim needs to be pursued or defended.
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- If required - Beddoe application
  - Claim form (CPR Part 8)
  - General form of order - Probate claim
  - Clause - Beddoe order
- Pre-action protocol and conduct
  
  It is necessary to ensure compliance with the requirements of the pre-action protocol before starting a probate claim. There is no specific pre-action protocol for probate claims, so the Practice Direction – Pre-Action Conduct and Protocols applies. This requires:
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- Practice Direction – Pre-Action Conduct and Protocols
- Code of conduct
  
  Although not compulsory, a good working knowledge of the Association of Contentious Trust & Probate Specialists code of conduct, known as The ACTAPS Code, may be beneficial. The timeline suggested by the code is:
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- The Association of Contentious Trust & Probate Specialists code of conduct
- Application for pre-action disclosure
  
  Disclosure may be required to investigate the deceased’s domicile. See Deceased’s domicile. Applications for pre-action disclosure are governed by r 31.16 of the Civil Procedure Rules or paragraph 31.16 in Section II of Practice Direction 57AD if the disclosure pilot for the Business ...
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- Application notice
D. Settling the matter
- Alternative dispute resolution
  
  A court has discretionary power to order parties in court proceedings to engage in alternative dispute resolution (ADR), James Churchill -v- Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Mr Churchill claimed against his council for damage caused to his property by Japanese knotweed. ...
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- Letter to the other side’s solicitor suggesting alternative dispute resolution
- If required - Staying proceedings
  - Letter to court filing documents
  - Application notice
  - Stay for alternative dispute resolution
- Early neutral evaluation
  
  Negotiations may be facilitated with the court’s assistance by requesting a non-binding early neutral evaluation. See paragraphs 10.17-10.24 of the Chancery guide. Subject to agreement by all parties, the court will arrange for an independent party with relevant expertise to provide an opinion ...
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- Clause - Early neutral evaluation order
- Chancery financial dispute resolution
  
  A chancery financial dispute resolution is a court service offering an opinion and a negotiated settlement exercise. See paragraphs 10.25-10.33 of the Chancery Guide. A chancery master or district judge will usually oversee the procedure and give directions on exchanging settlement proposals and ...
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- Clause - Chancery financial dispute resolution order
- Offers to settle
  
  There are opportunities to settle disputes, even when the parties’ relationship has soured. Settling the dispute can reduce costs and stress for all parties.
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- Letter to claimant’s solicitor making Calderbank offer
- Deed of settlement of a claim under the Inheritance (Provision for Family and Dependants) Act 1975
- Letter to court filing documents
- Order for approval of compromise
- Order in probate claim involving compromise
- Part 36 offers
  
  Part 36 of the Civil Procedure Rules provides for making an offer which will be treated without prejudice except as to costs. This means that the fact such an offer has been made together with its terms must not be communicated to the trial judge until the case has been decided: r 36.16. ...
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- If required - Part 36 offers
  - Enclosure - Part 36 offers
  - Letter to client suggesting making a Part 36 offer
  - Offer to settle (Section I Part 36)
  - Letter to other side's solicitor making Part 36 offer
  - Letter to client enclosing copy Part 36 offer made
  - Letter to client enclosing copy Part 36 offer received
- Discontinuance and Tomlin orders
  
  A probate claim may be discontinued on application to the court by either the claimant or defendant. See r 57.11(2) of the Civil Procedure Rules. Paragraphs 6.1 and 6.2 of Practice Direction 57 provide that the court may:
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- If required - Tomlin order
  - Letter to court filing documents
  - Application notice
  - Tomlin order - 1975 Act
  - Notice of discontinuance
  - Clause - Order for discontinuance of action or grant
E. Court practice and procedure
- The High Court and chancery district registries
  
  All probate claims in the High Court are specifically assigned to the Chancery Division, forming part of the Business and Property Courts of England and Wales. High Court judges hold hearings in the Chancery Division in London. Other issues, such as case management, listing, and most interim ...
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- The County Court
  
  The County Court’s limited jurisdiction covers probate claims relating to a grant or revocation of probate or administration of an estate and applies where:
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- Part 7 claims – Commencing proceedings
  
  Most estate dispute claims are issued under Part 7 of the Civil Procedure Rules supplemented by Practice Directions 7A and 7E, which deal with online claims.
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- Part 8 claims – Alternative procedure for claims
  
  Part 8 of the Civil Procedure Rules is an alternative procedure to the usual method of bringing a claim pursuant to Part 7. It is aimed at disputes where a claimant seeks the court’s decision on a question unlikely to involve a substantial dispute of fact. For example, it can be used ...
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- If required - Part 8 of the civil procedure rules
  - Acknowledgment of service
    
    In a probate claim, it is mandatory for the defendant to file an acknowledgment of service regardless of whether they intend to defend the claim or not. The period for filing an acknowledgment of service is:
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  - Acknowledgment of service (Part 8 costs-only claim)
  - Evidence
    
    Under r 8.5, written evidence should be filed with the Claim Form or Acknowledgment of Service. However, either party may apply to the court for an extension of time to file and serve additional evidence. For more information, see Disclosure and evidence.
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  - Trial
    
    The court may hear and dispose of the case or give directions at the hearing. For more information see Final hearing.
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- Electronic filing
  
  Courts and tribunals are increasingly developing ways to commence and manage cases electronically. In the Royal Courts of Justice and Upper Tribunals, a digital electronic filing system called Courts Electronic Filing System (CE-File) allows for the digital issue and management of cases.
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- Service
  
  Claim forms issued by the Chancery Division are served by the claimant rather than the court. The court serves claims issued out of a District Registry. The claim will be issued within 2 working days from the date it is submitted online. The claimant will be posted a notice confirming the ...
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- Request by defendant for service of claim form
  
  A delay in the service of the claim form may prompt the defendant to notify the claimant that the order must be served. This may be because, for example, the defendant does not want the uncertainty of wondering if and when the claim will be served. Rule 7.7(1) provides:
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- Letter to claimant’s solicitor giving notice regarding service
F. Responding to a claim
- Acknowledgment of service
  
  In a probate claim, it is mandatory for the defendant to file an acknowledgment of service regardless of whether they intend to defend the claim or not. The period for filing an acknowledgment of service is:
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- Letter to court responding to claim
- Response pack
- Initial disclosure
  
  When a party files and serves its particulars of claim or defence, a list of documents is also served together with copies of the documents in electronic format. Only key documents need to be served initially, with a cap of 1,000 pages or 200 documents, whichever is the larger.
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- Letter to client regarding initial disclosure under the disclosure of documents requirements
- Enclosures for letter regarding initial disclosure
  - Enclosure - Disclosure of Documents
  - Disclosure review document
  - Disclosure review document for extended disclosure in less complex claims
- Initial disclosure list of documents
- Defendant admits the claim
  
  A defendant may admit the claim by filing a Form of Admission from the response pack. If the defendant requires time to pay the amount admitted, they will need to complete the parts of the form that require details of their assets, income and outgoings and then make an instalment offer.
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- Defendant admits part of the claim
  
  The defendant who admits only part of a claim will need to file a defence to the part of the claim that is not admitted preventing judgment from being awarded for the whole claim. Once the defence is filed, the matter progresses to the case management phase. The claimant will have the option of ...
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- Defendant disputes the claim
  
  Defence Where the defendant wishes to dispute the claim in whole or in part, they must file a defence within 14 days of service of the particulars of claim or within 28 days if they have first filed an acknowledgment of service.
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- Admission (unspecified amount, non-money and return of goods claims)
- Admission (specified amount)
- General form of defence - Probate claim
- Defence form
- Defence and counterclaim (unspecified amount, non-money and return of goods claims)
- Defence and counterclaim (specified amount)
- Extension of time
  
  If the defendant needs more time to respond, consent for an extension should be sought from the claimant before the time limits expire. Rule 2.11 of the Civil Procedure Rules allows parties to agree to a time limit variations between themselves. Rule 15.5 notes that the parties may agree ...
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- If required - Extension of time
  - Letter to other side's solicitor requesting extension for time to serve
  - Application notice
  - Clause - Extension of time
  - Letter to court confirming extension agreed between the parties
- Counterclaims and additional claims
  
  Part 20 of the Civil Procedure Rules sets out the requirements for counterclaims by the defendant against the claimant or a third party and other additional claims such as the defendant seeking contributions or indemnity from a third party. The rule commences by effectively reiterating the ...
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- Library of clauses for defences and counterclaims
  - Defence - Will propounded by claimant and defendant claims intestacy
  - Defence - Will propounded by claimant and defendant offers up a further testamentary document in addition
  - Defence - Will propounded by claimant and defendant claims probate of earlier will
  - Defence - Will propounded by claimant was revoked by destruction
  - Defence - Deceased lacked testamentary capacity
  - Defence - Undue influence
  - Defence - Fraud
  - Defence - Want of knowledge and approval
  - Defence - Will not duly executed
G. Interim applications
- Security for costs
  
  As part of a response, the defendant may apply to the court for security for costs under r 25.12 of the Civil Procedure Rules. This is an application to require the claimant to pay a sum of money into court to protect the defendant’s ability to claim their costs back if they are successful in ...
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- Clause - Wording for Form N244 Application Notice, box 3 - Security for costs
- Example content - Draft order - Security for costs
- Security of receiver or of administrator pending determination of a probate claim
- Default judgment
  
  Default judgments – judgments without trial – do not apply to contentious probate claims: r 57.10(1) and r 10.2 of the Civil Procedure Rules.
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- Summary judgment or strike out
  
  Rule 24 provides the court may give summary judgment against a claimant or defendant on the whole of a claim or a particular issue or order a statement of case to be struck out if it considers that:
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- Letter to client with advice about summary judgment
- Application notice
- Unless order
- Order for disposal hearing: Part 8 Claims
- Notice of judgment or order to non-parties
- Letter to court filing documents
- If required - Evidence
  - Letter to court filing written evidence
  - Letter to other side's solicitor serving written evidence
- Letter to client after summary judgment success
H. Case management and directions
- Case management
  
  Initial assessment If the High Court issues the claim, it will be allocated to a master. If issued by a District Registry, it will be allocated to a district judge.
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- Transfer of claims from the High Court to the County Court
  
  The County Court’s jurisdiction being limited to £30,000 does not prevent the High Court from exercising its statutory power to transfer a probate claim to the County Court. See s 40(2) of the County Courts Act 1984, subject to the following criteria as set out in r 30.3(2) of the Civil ...
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- Directions questionnaires
  
  Each party is required to file a completed Directions Questionnaire (Fast track and Multi-track) Form N181 no later than 28 days after service of the allocation notice referred to above. The Directions Questionnaire (Fast track and Multi-track) Form N181 covers the following matters:
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- Directions questionnaire (fast track, intermediate track and multi-track)
- Enclosures for directions questionnaire - Directions, disclosure and costs
  - Draft chancery case management directions
  - Disclosure review document
    
    As probate claims fall within the disclosure requirements set out in Practice Direction 57AD and the parties to the claim must agree on a draft list of issues for disclosure, paragraph 7.10 of the practice direction, and file a disclosure review document 5 days before the case ...
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  - Disclosure review document
  - Disclosure review document for extended disclosure in less complex claims
  - Costs budgets
    
    Costs management is governed by Part 3 of the Civil Procedure Rules, Practice Direction 3E, and chapter 17 of the Chancery Guide. In multi-track cases, r 3.13 requires the parties to file a costs budget unless the court otherwise orders costs budgets:
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  - Costs budget (Precedent H) and budget discussion report (Precedent R)
  - Precedent T - (budget variation summary sheet)
  - Using the automated app – Precedent H – Costs budget
  - Using the automated app – Precedent S – Bill of costs
- Letter to client confirming costs budget
- Letter to claimant's solicitor serving costs budget
- Case and costs management conference
  
  The case management conference allows the judge to:
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- Costs management order (For use where budgets have not been wholly agreed)
- Directions
  
  Directions are given to parties by the court to assist in trial preparation. They are intended to:
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- Multi-track standard directions
- Listing questionnaire
  
  Also known as the pre-trial checklist and effectively a second part of the direction’s procedure, they seek information from the parties to enable the court to list the case and fill any gaps in getting the case from directions to trial.
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- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Application notice
- General form of order - Probate claim
I. Disclosure and evidence
- Disclosure
  
  Disclosure is the stage in a case where parties share with the other side and the court the information on which they are basing their case, together with anything else that affects it. Disclosure is in keeping with the overriding objective of the Civil Procedure Rules, which is to enable the case ...
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- Initial disclosure
  
  When a party files and serves its particulars of claim or defence, a list of documents is also served together with copies of the documents in electronic format. Only key documents need to be served initially, with a cap of 1,000 pages or 200 documents, whichever is the larger.
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- Letter to client regarding initial disclosure under the disclosure of documents requirements
- Enclosures for letter regarding initial disclosure
  - Enclosure - Disclosure of Documents
  - Disclosure review document
  - Disclosure review document for extended disclosure in less complex claims
- Initial disclosure list of documents
- If required - Order to hand out documents for examination
  - Letter to court filing documents
  - Application notice
  - Handing out testamentary documents for examination
- Extended disclosure
  
  Within 28 days of the initial disclosure, the parties state if they believe further disclosure is required. This will only be ordered where it is appropriate to resolve an issue. If the parties decide that extended disclosure is necessary, a request is made to the court using a joint Appendix ...
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- Letter to client regarding extended disclosure
- Disclosure certificate
- Letter to court filing documents
- Evidence
  
  Under r 8.5, written evidence should be filed with the Claim Form or Acknowledgment of Service. However, either party may apply to the court for an extension of time to file and serve additional evidence. For more information, see Disclosure and evidence.
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- Library of evidence documents
  - Proof of evidence
  - Witness statement - Civil matters
  - Exhibit sheet to witness statement - Civil matters
  - General form of affidavit
  - Clause - Affidavit for civil matters
  - Exhibit sheet for affidavits - Civil matters
  - Notice of intention to rely on hearsay evidence
  - Notice to admit facts
- Letter to court filing written evidence
- Letter to other side's solicitor serving written evidence
- Expert witnesses
  
  Evidence from an expert who has been instructed to give or prepare evidence on any relevant matter in which they are qualified is admissible, despite the usual rule against opinion evidence being admitted: s 3 of the Civil Evidence Act 1972. See Part 35 of the Civil Procedure Rules ...
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- If required - Expert witnesses
  - Letter to expert requesting report
  - Letter to client enclosing expert's report
  - Letter to court filing expert's report
  - Letter to other side's solicitor serving expert's report
J. Final hearing and costs
- Preparation for the final hearing
  
  Pre-trial preparation The court will send a listing questionnaire or pre-trial checklist for filing no more than 8 weeks before the trial date. This deals with the following matters:
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- Letter to counsel enclosing brief
- Brief to counsel - Civil matters
- Letter to client advising of court hearing date
- Letter to court advising client will not attend
- Letter to witness advising hearing date
- Multi-track standard directions
- Pre-trial preparation
  
  The court will send a listing questionnaire or pre-trial checklist for filing no more than 8 weeks before the trial date. This deals with the following matters:
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- Listing questionnaire (pre-trial checklist)
- Letter to court filing documents
- Court bundles
  
  A court bundle is an indexed collection of documents that the parties will rely on during the hearing. The trial bundle includes all documents filed in court and evidence, leaving out irrelevant documents, even if disclosed in the proceedings. See r 39.5 of the Civil Procedure Rules, ...
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- County Court, High Court and Appeal Court - Trial bundle cover page
- County Court, High Court and Appeal Court - Trial bundle index
- Case summary
- Chronology - Civil matters
- Letter to other side's solicitor enclosing index to trial bundle
- Letter to other side's solicitor enclosing trial bundle
- Letter to court filing trial bundle
- Costs for the final hearing
  
  Costs are at the court’s discretion. Usually, the unsuccessful party will pay the costs of the successful party. The court also has the discretion to make other costs orders, especially where a party has been uncooperative: r 44.2. The basis of assessment will be either standard or indemnity. ...
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- Costs budget (Precedent H) and budget discussion report (Precedent R)
- Precedent T - (budget variation summary sheet)
- Using the automated app – Precedent H – Costs budget
- Using the automated app – Precedent S – Bill of costs
- Final hearing
  
  Preparation for the final hearing
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- After the final hearing
  
  The judge will deliver judgment orally. Parties can obtain a transcript of the judgment by emailing TranscriptRequest.Rolls@justice.gov.uk. The obligation to enforce the judgment or order is on the successful party to the claim.
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- If required - Chancery division enforcement
  - Interim charging order
  - Final charging order
  - Enforcing charging order (single defendant)
  - Enforcing charging order (multiple defendants)
  - Variation of trusts: confidentiality order
  - Common form of order for sale
  - Order nominating person to execute sale
  - Result of account of money due
K. Finalising the matter
- Settled matters
  
  If a matter is settled, practitioners are required to advise the court immediately. Until terms of the settlement, consent orders, or a notice of discontinuance are filed, the parties are required to attend before the court if the matter is listed. See Settling the matter above.
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- Advising the client
  
  In advising the client on matters post judgment, much will depend on the court’s order and therefore guidance in this section can only be general. Broadly, the 2 main aspects on which the client is to be advised are:
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- Letter to client advising successful outcome and enclosing invoice
- Letter to client advising unsuccessful outcome with advice about appeal and enclosing invoice
- Letter to client finalising the matter - Successful estate dispute
- Letter to client finalising the matter - Unsuccessful estate dispute
- Example invoice
- Invoice recital - Estate disputes - Acting for the defendant
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

This publication guides practitioners through all manner of contentious probate topics, from contesting a will to missing people and presumed death.

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