Litigation insurance for wills and probate disputes – the key points
We understand the complexities that arise in traditional Chancery litigation and are able to offer bespoke litigation insurance and disbursement funding to accommodate all types of wills and probate disputes. These include: –
1. Probate cases, including but not limited to: –
- Interest claims, where this is based on the interpretation of the intestacy rules;
- Revocation of a grant, where a will had been proved in common form;
- Pronouncing for or against a will. This may be based on accusations of undue influence, forgery of signature or fraudulent calumny.
2. Rectifying a will or to protect a will from rectification, under section 20 of the Administration of Justice Act 1982.
3. Cases being pursued under the Inheritance (Provision for Family and Dependants) Act 1975.
Other scenarios we are able to consider
- Applications under the Tort (Interference with Goods) Act 1977;
- Applications for injunctions with or without notice to prohibit the disposal of assets before a grant of probate or apprehend an executor’s maladministration;
- Applications under the Administration of Justice Act 1985;
- Applications under the Law of Property Act 1925 (see our recent article on the case of Scarle (Deceased) v Scarle (Deceased)  EWHC 2224 (Ch).
The Temple Advantage
- No upfront cost of obtaining litigation insurance – we do not charge an assessment fee.
- Payment of the premium is deferred until the conclusion of the case and is contingent on a successful outcome.
- Insured clients will have access to disbursement funding from Temple Funding, a subsidiary of Temple Legal Protection. This can be used to fund the court issue fee, expert reports and mediation without any risk to your client.
Getting the timing right
The best time to send a case to us is once you have been able to adequately assess the merits of the claim. Usually, this is as proceedings are about to be issued and any pre-action protocol correspondence has been completed. However, cases can be referred once the pleadings have closed and directions have been handed down.
Traditional legal expenses insurance is often referred to as Before-The-Event or ‘BTE’ cover. Litigation insurance for wills and probate disputes used by solicitors is often known as After-The-Event or ATE insurance. The latter is the term known to many solicitors but your clients may more easily understand ‘Litigation Insurance’. Whichever terminology you use, it is a tailored policy put in place with the specific aim of protecting your client from having to pay the opponent’s costs and their own disbursements if they lose their case. It is unique in that the insurance policy is only entered into after a wills and probate dispute has arisen.
There are two ways of working with Temple Legal Protection; either under a delegated authority scheme agreement or on a one-off basis.
If your firm has a delegated authority scheme with us, it will be provided with access to the Temple Online Policy System which will allow you and your colleagues to create insurance policies for your clients without making a direct application.
- This agreement would provide that any case which falls within the eligibility criteria whuch we would agreee for your firm can be insured automatically.
- Such an arrangement would allow a case to proceed to trial, without having to obtain consent under the policy of insurance to issue court proceedings or reject Part 36 offers.
Our underwriters are able to tailor the insurance and funding product to meet the needs of the case. Usually, the premium is calculated by reference to recovered damages and the client’s own costs.
If your client is seeking declaratory relief rather than damages, the premium is based either on a percentage of the limit of indemnity or your client’s incurred costs. All policies include a ‘premium cap’, limiting the premium to a specified percentage of the amount of cover.
Yes. An executor may be in the position where it is necessary to prove a will in solemn form. They may also be the defendant/respondent to a case or application brought by a beneficiary or other interested party. Costs are not always paid out of the estate and it may be necessary to consider protecting an executor from an order for costs.
Yes. It is not necessary for the Insured party to be the claimant or applicant. The legal and commercial merits are the most important factors considered by our underwriters.
Yes. We will take this into account in our review of the papers, but may be assisted by sight of a draft witness statement and relevant contemporaneous evidence. Disbursement funding may be available for the expert’s fees.
Temple Legal Protection prioritise the merits of the case, not the basis of the retainer you have with your client. Whilst it is a sign of confidence in a case if a firm is risking all or part of its fees, our underwriters know that in the commercial world, it is a benefit for fees to be paid in the traditional way and that such an arrangement is not indicative of a solicitor’s view of the merits and risk. We regularly insure cases where the client pays his solicitor’s fees as the case progresses.
Contact our experts
If you are interested in a delegated authority scheme for your firm’s wills and probate litigation team do call us to discuss your requirements – contact details are below or please complete Solicitor Application Form.
To apply for litigation insurance and disbursement funding on a case-by-case basis, please complete and send a Commercial Proposal Form to us – along with copies of the pertinent papers (e.g. a copy of the will/caveat, pre-action correspondence, pleadings etc.). If you would like to speak with an underwriter before sending the case in to us, you will find contact details below and on Our People page.