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Step 8: A Lower Court Hearing / Trial

Wills and Probate

Primary Content Source: David Rosen

Lower Court Hearing/Trial The courts in England and Wales use a system of adversarial hearings, which permits the opposing parties to bring evidence to support their arguments and to test each other’s evidence by cross-examination. For an introduction to adversarial advocacy, please see the video below.

The HM Courts & Tribunals Service published a recent Chancery Guide (February 2016), which provides practical information that supplements the Civil Procedure Rules (‘CPR’) and Practice Directions (‘PD’). Importantly, this Guide provides specific information for litigants in person in Chapter 4. Special procedures relating to probate and inheritance (as discussed here in sections ‘Issuing Proceedings’ and ‘Defending your Position’) are also set out at pages 117-119. Please consult the Chancery Guide at: http://www.justice.gov.uk/downloads/courts/chancerycourt/chancery-guide.pdf.

 

The recommendations made to Litigants in Person (LiPs) when engaging in court proceedings are:

  • LiPs are expected to comply with the CPR and therefore must become familiar with the applicable provisions of the CPR and of this Chancery Guide;

  • LiPs, as parties to the litigation (even if they are not represented), have a duty to bring relevant matters to the attention of the court and not mislead the court. That means that they must not misrepresent the law and must inform the court of any relevant legislation or previous court decisions applicable to their case and of which they are aware, whether or not they are favorable to their case;

  • LiPs must give their address for service in England or Wales (either in the claim form if the LiP is a claimant or in the acknowledgement of service if the LiP is a defendant). Any change of address must be notified in writing to the Chancery Chambers and to all parties to the case in order to ensure that important communications and documents arrive at the correct address;

  • LiPs should identify in advance of the hearing their strongest points and ensure that they argue those points first in their oral and written submissions;

  • LiPs must show consideration and respect to their opponents, whether legally represented or not, and to the court. The court will ensure that proceedings are conducted fairly, especially taking into account the difficulties faced by LiPs who are not trained legal practitioners;

  • Before the start of the hearing, LiPs should be given and provide a skeleton argument together with photocopies of any cases and/or statutes to be cited (bundles of documents);

  • In exercising its case management powers, the court will take into account that LiPs are unrepresented;

  • A LiP giving oral evidence in court will do so from the witness box in the same way as any other witness of fact;

  • LiPs must be present at the hearing but may be assisted at the hearing by another person, referred to as a McKenzie friend (1) . The McKenzie friend is allowed to take notes, to quietly prompt the LiP and offer advice and suggestions to the LiP. The court can sometimes permit the McKenzie friend to address the court on behalf of the LiP. The Chancery Division will usually follow the guidance contained in Practice Note (McKenzie friends: Civil and Family Courts) [2010] 1 WLR 1881 (2) .

  • The court staff or judges are not able to provide advice to LiPs about the conduct of the claim. LiPs are advised to use other free sources of help, as set out in the previous section on ‘Asking a 3rd Party for Help’.

 

Jurisdiction of the High Court in Probate and Inheritance Act Claims

According to CPR Part 57(2) (3), probate claims fall under the jurisdiction of the High Court or the County Court. Probate claims in the High Court are assigned to the Chancery Division. Those in the County Court must only be started by making the claim at a County Court hearing centre where there is also a Chancery district registry or at the County Court at Central London. The County Court has jurisdiction only in estates that are lower than GBP 30,000. All probate claims are allocated to the multi-track.

Claims for the substitution or removal of PRs fall under the jurisdiction of the High Court and are assigned to the Chancery Division (4) .

Claims under the Inheritance Act 1975 fall under the jurisdiction of the High Court and shall be issued either in the Chancery Division or Family Division (concurrent jurisdiction) (5) .

 

Discontinuance and Dismissal

One remarkable fact of probate litigation is that a claimant may not simply discontinue all or part of the claim at any time. That is because the customary rules regarding discontinuance set out in Part 38 CPR do no apply to probate claims. Instead, at any stage of a probate claim, the claimant or any defendant who has acknowledged service may make an application to the court. Then, the court may order that the claim be discontinued or dismissed on such terms as it thinks just and a grant of probate of the will or letters of administration of the estate of the deceased person will be made to the person entitled to the grant. (6)