Step 4: Using Pre-Action Protocols

Wills and Probate

After examining a potential claim, the claimant will usually decide whether it is worth pursuing in court. However, before instituting court proceedings, the Rules of Civil Procedure in England and Wales require that a Pre-Action Protocol should be observed(1). A Pre-Action Protocol creates a framework that encourages parties to resolve their dispute without hostile litigation and enables the parties to exchange specific information at the outset in order to solve their conflict quicker and more cost effectively.

In probate disputes, the ACTAPS(2) Practice Guidance for the Resolution of Probate and Trust Disputes (the ACTAPS Code)(3) acts as a pre-action protocol. Although not formally accepted as one, it is recognised as the primary set of guidelines and best practices in this area of law. Paragraph 4 of the Practice Direction on Protocols specifically states: “in cases not covered by any protocol, the court will expect the parties to act reasonably in exchanging information and documents relevant to their claim and in trying to avoid the necessity for the start of proceedings”.

The key points of the ACTAPS Code stipulate the following:

1. Preliminary Notice: The claimant must notify the relevant parties (the PR, trustees and/or beneficiaries) in writing with a brief outline of the claim. The recipients should acknowledge this letter within 21 days.

2. Letter of Claim: The claimant must send a detailed Letter of Claim to the relevant parties, identifying the parties, setting out the relevant facts upon which the claim is based and enclosing supporting documentation (disclosure of documents on all sides is encouraged) (4) .

3. Letter of Response and Letter of Settlement: The recipients of the Letter of Claim must send a Letter of Response within 21 days of the receipt of the Letter of Claim, putting forward their responses to the claim. Supporting documentation should be enclosed, as with the Letter of Claim. A Letter of Settlement is aimed at reaching a settlement and will therefore usually be ‘without prejudice’, meaning that it will be confidential between the parties and will not be presented to the court during any court action. This letter should make proposals for settlement or identify what further evidence is needed for such a proposal to be made.

Note that the Letter of Claim and the Letter of Response do not have the same status as ‘pleadings’ in the context of litigation. That means that they are not the formal and final submissions of claims and defences because more evidence may come to light after these letters have been exchanged.

If the claim is denied in its entirety or there is no response in the form of a Letter of Settlement, the claimant can proceed with court proceedings.

4. Expert Evidence: Parties are encouraged to obtain (preferably joint) expert evidence. This includes medical records, handwriting evidence, valuation evidence, tax-related and actuarial evidence.

5. Joint Applications for Documents/Records: Parties can make joint applications for: (a) the provision of copies of the deceased’s medical notes or social workers’ reports to all parties(5) , and (b) a statement by the solicitor who prepared the will of the deceased explaining all circumstances leading up to the preparation and making of the will(6) .

6. Report as to deceased’s mental capacity: Where the mental capacity of the deceased at the time of execution of the will is contested, a party relying on the validity of the will can request a report from the deceased’s GP and send it to all other parties within 7 days of receipt(7) .

(1) This is a requirement in the Practice Direction on Pre-Action Conduct and Protocols14 annexed to the Civil Procedure Rules.

(2)The Association of Contentious Trust and Probate Specialists.

(3) ACATPS Code: http://www.actaps.com/draft.cfm.

(4) A standard form for the Letter of Claim can be found in Annex B of the ACTAPS Code. Examples of documents to be enclosed to the application can be found in Annex C of the ACTAPS Code. The list is not exhaustive.

(5) A specimen joint application can be found at Annex D of the ACTAPS Code.

(6) A specimen joint application can be found at Annex E of the ACTAPS Code.

(7) A specimen application can be found at Annex F of the ACTAPS Code.