Early Case Assessment in Contentious Probate Disputes – Practical Considerations for Litigators

By Jamela Collins, Technical Underwriting Manager

Estimate read time 2 minutes 32 seconds

Contentious trusts and probate disputes present some of the most challenging and fact-sensitive litigation encountered by solicitors. As wealth passes between generations, family relationships become increasingly complex and claims continue to rise, the importance of thorough early case assessment has never been greater.

This article looks at some of the practical considerations that can influence those early decisions, with particular reference to testamentary capacity and undue influence, along with observations from an ATE insurance underwriting perspective.

Looking Beyond the Legal Issues

While the legal principles surrounding testamentary capacity and undue influence are well established, applying them in practice is rarely straightforward. In many contentious probate disputes, the outcome depends as much on the quality of the available evidence as the legal arguments themselves.

For solicitors, this makes early case assessment particularly important. Understanding the strengths and weaknesses of the available evidence at the outset can help shape litigation strategy, identify where further enquiries may be needed and provide a more informed assessment of the likely costs and risks associated with pursuing or defending a claim. These are also many of the same factors considered when assessing whether ATE insurance may be appropriate.

Assessing the Evidence

Cases involving testamentary capacity or allegations of undue influence frequently rely on evidence gathered long after the events in question. Medical records, attendance notes, witness accounts and other contemporaneous documents may all become central to the dispute, but they do not always present a complete or consistent picture.

Where evidence is limited or conflicting, establishing the likely prospects of success can become significantly more challenging. It is therefore important to identify at an early stage where evidential gaps exist, whether additional expert evidence may be required and how those factors could affect both litigation strategy and overall costs exposure.  As part of this exercise it is essential to obtain witness statements early on whilst recollections are fresh and witnesses are willing to engage in the process.

An informed early assessment can also assist in setting realistic expectations for clients, particularly where the costs and duration of proceedings may become disproportionate to the issues in dispute.

Practical Considerations

No two contentious probate disputes are the same, but there are often common questions worth considering early on. These include –

• Is there sufficient contemporaneous evidence to support the claim?
• Are independent witnesses available?
• How persuasive is any medical evidence likely to be?
• Are the key allegations capable of being proved, or are they likely to depend upon competing witness recollections?

These do not determine the outcome of a case but can have a significant bearing on how litigation develops. They may also influence decisions regarding disclosure, expert evidence, mediation and the overall management of the claim.

From an underwriting perspective, these same issues help build a clearer picture of the litigation risk and the potential exposure to adverse costs as the matter progresses.

The Temple Perspective

Early case assessment is not solely about considering the legal merits of a contentious probate dispute. It is also about understanding the evidential issues that may influence the likely course of the litigation, the costs involved and the risks associated with pursuing or defending the claim.

For underwriters assessing an application for ATE insurance, cases involving testamentary capacity or undue influence often require particularly careful consideration of the available evidence and the practical challenges it presents. Early discussion between solicitor and underwriter can help identify those issues, leading to a more informed assessment of litigation risk and whether ATE insurance is appropriate for the case.

If you would like to discuss ATE insurance and disbursement funding for a contentious trust and probate dispute, or you have any other legal expenses insurance questions, please email  jamela.collins@temple-legal.co.uk or call 01483 514871. I look forward to hearing from you.