The emperor’s new clothes – How can Brexit be negotiated without a plan?

Until a political decision has been made and voted on in Parliament about whether or not Britain is to remain in the EU single market and customs union, how can Britain and the EU negotiate a FTA, as there is no trade agreement model on the table to negotiate terms about.

Following the German Federal election the time that will remain to make a decision, propose a position, and agree terms, will be less than 10 months (taking into account Christmas, and the usual New Year, Easter, and Summer holiday periods in 2018). After March 2019 the EU’s priority will be to progress the negotiation of FTA’s with other countries, to which negotiations with Britain over Brexit are likely to be relegated when allocating technical negotiating resources. Britain’s negotiators should not waste a minute of the precious little time available which the EU have allocated to Brexit because this is not an elastic window, although it can be extended.

What is the government’s plan? – NB the Treasury reported that whereas £13 bn of contributions were paid to the EU in 2015, there would be a 9.5% cut in UK GDP which would trigger a £66 bn (per annum) loss of tax revenues under WTO rules if there is a hard Brexit, which = 85.7% differential net loss if Britain falls over the cliff edge. In other words trading with the EU under WTO rules will cost Britain (in lost revenue) 6.5 times more per annum than the cost of full membership did in 2015. That does not include the cost to each British business of the consequential administrative burden of additional bureacracy and tariff charges, and that is only half of the picture. As observed in the Brexit Roadmap on the Diplomatic Law Guide ( underneath the heading ‘Regularising the UK’s WTO scheduled commitments’, ‘Britain is currently a member via the EU. Full members must deposit ‘schedules’ of tariffs, quotas, subsidies and other concessions on market access with the WTO. The UK will have to negotiate its own schedules, initially with the other 27. The tariff negotiation could be simple if the British followed what the EU currently does. But dividing up quotas, on say New Zealand lamb imports, would be more complicated. And then the new British schedules would need the approval of all 163 WTO members, since the organisation’s decisions require consensus. So if one member (for example, Argentina or Russia) wanted to create difficulties, it could block the British schedules. British officials hope that such difficulties do not arise, but reckon that it will be hard work to sort out WTO membership within the two years of the Article 50 negotiation.’

Where are Britain’s detailed position papers (for which we have had 12 months to prepare)?

If there is no strategic intelligence leading British negotiations with defined, practicable, and agreed (i.e. all singing off the same song sheet) objectives, then how can Theresa May’s government know where it is going and taking Britain?

How can it negotiate Brexit?

In “The Emperor’s New Clothes” (published 7 April 1837 in the final instalment of “Fairy Tales for Children”), Hans Christian Andersen told the tale of two weavers who promised an emperor a new suit of clothes which they said was invisible to those who were unfit for their positions, stupid, or incompetent. When the emperor paraded before his subjects in his new clothes, no one dared to say that they didn’t see any suit of clothes on him for fear that they would be seen as “unfit for their positions, stupid, or incompetent”. Finally, a child cried out, “But he isn’t wearing anything at all!”

Does this tale have any resonance for the trust politicians expect British voters to place in them to conclude terms of a comprehensive FTA with the EU before October 2018?

Do they see something that nobody else does?

If not, when the Article 50 clock stops ticking, unless an interim arrangement is actually in place (which has to be agreed), then what is the likelihood of Brexit negotiations resulting in a fairy tale ending?

In an article published in the Guardian (18 July) ‘How to beat the ticking Brexit clock: let British business leaders do the talking’, Miriam González Durántez concludes,

‘The best thing this government could do to appease the serious concerns of UK business leaders on Brexit is to rely on the business leaders themselves. This means no more toying with extravagant and ill-founded ideas. And it also means seeking an interim arrangement with the EU to continue benefiting from the single market and the customs union for as long as is needed until an alternative EU-UK deal is reached, as business leaders have proposed. This can be done by placing the UK into the European Economic Area on a temporary basis, and/or looking for an ad hoc arrangement extending the current status quo. Neither the extreme Brexiteers nor the extreme remainers like this option, but it is the only sensible thing to do right now. It allows the UK government to win time. And time is what the government needs – to get the skills it misses, to draft proposals it has not even started to draft yet and to negotiate with the serenity that the high economic interests at stake deserve. 

An interim deal is the only way to deal with the ticking clock Michael Barnier hears because, as any trade negotiator knows, there is nothing worse than negotiating against time. Except for negotiating against time in pursuit of delusional and unrealistic ambitions.’

She also observes that at the meeting held at Chevening last week,

‘British business leaders were asked to share the table with the Legatum Institute, a think tank with unparalleled access to Davis and Theresa May and that seems to have been at the origin of some of the preposterous positions on Brexit taken by the government so far. Its inexplicable presence at that table was the clearest signal that the government has not changed its views on Brexit after the general election even one tiny little bit.’ [In which case, in spite of the Chancellor’s economic concerns, the Government remains unswerving it is determination to negotiate a hard Brexit].

‘Unlike think tanks like the Center for European Reform which knows more about the EU than the whole cabinet put together, the common characteristic of most of the Legatum trade commission seems to be not having worked at any time within the EU or even directly with it. I have negotiated myself for the EU on many occasions on trade, and I have seen how shocked negotiators from other countries become when they realise how difficult it is to negotiate with 27 countries – with their own institutions and legal system – at the same time. 

It is easy to see why this government would be mesmerised by Legatum. It is keen on unilaterally removing tariffs and quotas on agriculture products (farmers, take note) in exchange for services agreements all over the world. The effect of this on food security and food prices was highlighted this week in a report published by the University of Sussex. Equally importantly it doesn’t take much to realise that we are going to need an agriculture market at least 50 times the size of the UK’s to secure like-for-like access in foreign markets for our much larger services sector. A think-tank that can’t even work out the respective sizes of our farming and services sectors is in dire need of a lot more “thinking”. 

The institute also seems to be behind Davis’s recurrent claim that the UK will have “frictionless” access to the single market even if it is not part of it – an embarrassing comment that brings despair to Europeans, as the single market is a system of rules based on trust and a single legal order, and therefore accessible only to those who are part of it. When the EU negotiator Michel Barnier says that “some in Britain still do not understand”, he seems to be referring among others to how Davis still has not understood this. 

The main idea of the institute, though, seems to be the creation of a “prosperity zone” between the UK, Australia, New Zealand and Singapore, eventually extended to the US, Canada and Mexico, if the North Amercian Free Trade Agreement renegotiations succeed. This is actually an old idea, originally floated by Mitt Romney in 2008. It obviously did not work then, and it will not work now. One does not need to have a Nobel Prize in trade economics to realise that, even with the US and Canada included (which is very unlikely indeed) this can hardly compensate for all the trade that the UK will lose by stepping out of the EU.’ 

In an article in the Guardian (18 July) ‘In David Davis, Britain has a schoolboy in charge of the moon landings – Not all the early signs point to the Brexit secretary being a reckless bluffer who is wildly out of his depth. But most of them do’ ( the Guardian columnist Rafael Behr observes,

‘One definition of an ideologue is a person who responds to the collision of opinion with reality by insisting that reality must yield.

There are times when stubbornness is admirable, when formidable obstacles must be overcome by transcendent principle. Without that idea, Mahatma Gandhi would have bowed to British colonial rule. Rosa Parks would have surrendered her seat to a white passenger on an Alabama bus.

But in those cases, systemic prejudice ruled out negotiated compromise. Brexit is not such a case, and David Davis is no Rosa Parks. 

The Brexit secretary is certainly stubborn when it comes to belief in his own abilities. He is also on a collision course with a wall of reality in Brussels. It is a stark fact that Britain’s prosperity and security depend on his technique for navigating that obstacle. 

Early signs are not encouraging. It would be silly to extrapolate too much from the photograph, published on Tuesday, depicting Davis empty handed at a table opposite Michel Barnier, his European commission counterpart, who is holding a heap of notes. Officials say the snap was taken before UK team members had unpacked their own stack of documents. 

But, as is often the case with such episodes, the awkward optics reinforced a valid caricature: Davis as an amateur trying his (and his country’s) luck against professionals. It did not help that Davis was on his way back to Westminster within an hour of the picture being taken. The defence was that underlings remained and got down to business. 

But it is another stark fact of Brexit dynamics that Barnier’s staff are drilled in EU process and law. They are playing at home. Team Davis has hardly laced its boots. Whitehall is unable to plan for the government’s desired outcome because no one knows what it is. The UK is also unpractised in negotiating in Brussels as an external party because we have, until now, been an integral component of this thing called Europe. 

British “position papers” on technical aspects of the negotiation (how to trade in nuclear material when article 50 requires exit from Euratom, for example) make painful reading for anyone seeking reassurance that Davis’s department is match fit. They are vague summaries of problems without solutions, as if the authors are only now beginning to grasp the challenges, through the act of writing them down for the first time.

British officials could not build a workable Brexit model before article 50 was triggered because the prime minister would not divulge her preference. She then squandered weeks on an election campaign that turned ambiguity into paralysis. 

Anyone imagining that a strategic intelligence lurked behind the scenes should ponder Davis’s assertion last July that the UK could expect to conclude trade deals with the US, India, China and Japan among other countries, starting in September 2016. “Within two years, before the negotiation with the EU is likely to be complete … we can negotiate a free trade area massively larger than the EU,” he said. 

Where are those deals? As long as the UK is part of the single market and the customs union – which it will be until at least March 2019 – there can be no external trade pacts. Thereafter, an optimistic expectation for the duration for such complex talks is five years. Put politely, Davis was talking out of his article 50 ignorance. 

That might be cited as evidence to support the charge levelled this week by Dominic Cummings, former head of Vote Leave, that Davis is “thick as mince, lazy as a toad and vain as Narcissus”.. Yet the jibe, typically unkind, was also unfair on two points. Davis is neither stupid nor idle. Arrogance alone could not have raised him from a penurious childhood to the top of government. He is energetic and cunning. But his skills are suited to a peculiarly British mode of advancement: the celebration of swagger and bluff over due diligence. Davis has benefited from Westminster’s generosity to men who gamble and busk their way through scrapes born of their own ill preparation – overgrown schoolboys who shirk their homework, then talk their way out of detention.

It is a trait Davis shares with Boris Johnson, one of his rivals in a succession battle, should Theresa May be deposed. Both have a reputation in government for ignoring their briefing notes. 

Viewed from Brussels, where there is a higher premium on command of boring detail, it is depressing to see the question of Britain’s European future yet again subsumed into a parochial Tory pissing contest. It is irritating too to Brexit realists in the cabinet, one of whom has urged May to slap down the testosterone-fuelled “donkeys” in government. 

Davis’s allies say completion of Brexit is his only goal, after which he intends to retire. That denial does not rule out finishing the job from No 10, should a vacancy arise. Supporters also say Davis is also pragmatist – unlike the wilder ideologues, who prefer a frenzied bolt out of the EU exit to a staged departure. 

Davis has yielded to some realities. His early bravado has been tempered by recognition that aspects of the job “make the Nasa moonshot look simple”. He accepts the need for an “implementation phase” to Brexit. He knows that some payment will be made to settle the UK’s EU budget obligations. He has forged an alliance with Philip Hammond, the cabinet’s leading advocate of the view that drastic rupture from the single market would be ruinous. But awareness of potential calamity is not proof of a strategy to avoid it. Assurances of Davis’s sober intent cannot expunge his record of maverick gestures. 

The Apollo 11 mission is a better metaphor than the Brexit secretary realised. It took the best part of a decade to plan. It cost billions. It was delivered by forensic expertise, not cocksure improvisation. Besides, getting to the moon was only half of the job: Nasa would not have initiated the countdown without a plan to get everyone back to Earth unharmed. Yet Davis is at the controls, already firing us out of Europe’s orbit on an undefined trajectory, with a shaky grasp of the laws of political gravity.’

My guide ‘Brexit Roadmap’ is set out on the Brexit page of the Diplomatic Law Guide

Settlement methodology

There is of course no one size fits all standard methodology for calculating a settlement range in dispute resolution. In contentious probate, a method which occurred to me, whilst not being scientific, may be practical where liquid assets in the estate (or realisable liquidity) is greater than the sum of the agreed settlement multiplied by the number of beneficiaries (including the claimant), is as follows:

Win = loss of 1/3 costs (unless costs are awarded on the indemnity basis).

If own trial and preparation costs = £50k = £16.6k.

Split (i.e. to demonstrate goodwill) 50:50 = £8.3K.

Lose = £50K x 2 = £100K.

If chances of losing = 25%.

£100K x 25% = £25K.

Therefore BATNA settlement range = £8.3 – £25K. Mid-point = £12.5k.

Each party bears own costs up to settlement.




‘A bird in the hand is better than two in the bush – the moral of Thornton & Ors v Woodhouse & Anor [2017]’

Application of the suspicious circumstances rule was recently considered in Thornton & Ors v Woodhouse & Anor [2017].

The suspicious circumstances rule

Where there are circumstances giving rise to suspicion that the testator did not know and approve the contents of his will, e.g. where a person who takes a substantial benefit under the will prepared it or was closely involved in its preparation, the presumption of due execution will not apply, and the court will not pronounce in favour of the will unless the suspicion is removed. The burden rests on the party propounding the will to produce sufficient evidence to dispel the suspicion arising from the circumstances. The court will be vigilant in examining evidence in support of the instrument and the party propounding the will must produce positive evidence of knowledge and approval by the testator. Thus the court may require evidence that the effect of the document was explained to the testator, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect: Re Kroll [2004]. (Duress, Undue Influence And Unconscionable Dealing 2nd ed by Nelson Enonchong paragraph 13-013).

Application of the legal principles

In Thornton & Ors v Woodhouse & Anor [2017] Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division):

  1. referred to the following guidance provided in Wharton v Bancroft [2011]:

‘(1)   The overall burden lies on the claimant to produce evidence sufficient to prove the Will. Certain evidential presumptions may assist in the discharge of that burden. However, the circumstances may indicate that the propounder is required positively to prove what in other circumstances might be presumed or inferred from the proof of other facts.

(2)   The assertion that the testator did not “know and approve” of the Will requires the Court, before admitting it to proof, to be satisfied that he understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.

(3)   The burden lies on those seeking to prove the Will to show that the testator knew and approved of the Will in that sense.

(4)   The Court can infer knowledge and approval from proof of capacity and proof of due execution.

(5)   Circumstances such as those described in Gill v Woodall at [14] raise a very strong presumption that the Will represents the testator’s intentions at the relevant time.

(6)   However, proof of the reading over of a will does not necessarily establish “knowledge and approval”. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.

(7)   Those challenging the Will must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.

(8)   It is not for them positively to prove that the testator had some other specific testamentary intention: but only to lead such evidence as leaves the Court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.

(9)   Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.

(10) A challenge on the grounds of want of knowledge and approval is not precluded by an admission of testamentary capacity. There are plainly cases in which the Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but needs to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect: see Hoff v Atherton [2004] EWCA Civ 1554 at [64].’

  1. referred to the following paragraphs in the judgment of Lord Justice Chadwick in Hoff v Atherton [2004] (CA):

‘62. …       if testamentary capacity — the ability to understand what is being done and its effect — is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.

  1. Whether those are inferences which should be drawn depends, of course, on the facts of the particular case. The fact that a beneficiary has been concerned in the instructions for, and preparation of, the will excites suspicion that the testator may not know the contents of the document which he signs — or may not know the whole of those contents. The degree of suspicion — and the evidence needed to dispel that suspicion — were considered by this Court in Fuller v Strum [2001] EWCA Civ 1879, paragraphs [32]–[36], [73], [77], [2002] 1 WLR 1097, 1107 C –109 A , 1122 A–C , 1122 G –1123 C.
  2. Further, it may well be that where there is evidence of a failing mind — and, a fortiori , where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will — the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will — that is to say, that he did understand what he was doing and its effect — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator’s capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents — in the wider sense to which I have referred.’
  3. applying these considerations to the facts of the case, concluded, that the disputed will (the ‘2009 Will’), ‘was properly executed, after being prepared by [a solicitor] and discussed with [the testator] at [a] meeting…, and there is accordingly a strong presumption that it represents his intentions at the time he executed it. Properly considered, there were, in my judgment, no suspicious circumstances in the present case, but if I am wrong about that, on the facts of this case the degree of suspicion is low and is readily dispelled by the points made by Mr Dew and the factors that I have gone over when considering (the submissions made on behalf of the 2nd Defendant).

For all these reasons, and applying the guidance that is provided by the decided cases, including (if it were necessary to place reliance on it) the caution against accepting too readily arguments of the kind that have been put forward on (on behalf of the 2nd Defendant) in this case, I am satisfied that [Testator] knew and approved of the contents of the 2009 Will.’

Submissions made by Richard Dew

‘Mr Dew submitted, in a nutshell, that proper application of these considerations to the facts of the present case leads inexorably to the conclusion that Richard did “know and approve” the 2009 Will. In brief outline, his main submissions were as follows:

(1)   There are no suspicious circumstances in this case, and the Court is not required to go beyond the fact, in accordance with Ms Harris’ evidence, the Will was discussed with Richard and the key changes and provisions identified for him.

(2)   The suspicious circumstances suggested by Lucy in Mr Macpherson’s opening submissions bear little relationship to the reality of 16 September 2009:

(i)     There is no evidence that Richard was lacking in mental abilities. All the independent evidence, and the perception of the solicitors, was that he was not. The “golden rule” (i.e. that the making of a will by an old and infirm testator ought to be witnesses and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings – see Cattermole v Prisk [2006] 1 FLR 693 at [12]) was not applied because it did not apply.

(ii)    Neither the Will nor the appointment of Susie [as an executor and trustee] represented a substantial break in Richard’s pattern of testamentary giving. The Will was essentially the same as earlier Wills, especially once it is appreciated that a life interest could and would have been granted to Susie under the 2001 Will. Although making Susie an executor and trustee was a new development, (a) it did not represent a radical break in Richard’s testamentary wishes, and (b) it is a change that is fully explained by the evidence.

(iii)   Withers’ advice as to the appointment of executors and trustees clearly changed or else was not accepted by Richard. That is not suspicious.

(iv)   The statement that Lucy and Mary are “cut out” from the Will is based on their stated perceptions of Susie, rather than on the real effect of her appointment, still less on how Richard would have perceived that appointment. It is wrong in both fact and law.

(v)   The effect of appointing Susie as executor and trustee is wholly consistent with the desire stated by Richard that Susie should be sufficiently provided for. It is not contrary to the 2009 Letter of Wishes.

(vi)   Lucy’s complaint that Susie does not, in truth, have a veto and that this was not properly explained to Richard pulls in the opposite direction to other aspects of her case, but is ill-founded in any event: Richard had already engaged in a number of conversations about the positions of executors and trustees, and was fully aware of their powers.

(vii)  Susie’s involvement in the Will was limited and, on the evidence of Ms Harris, was not uncommon, surprising or unusual. In most cases where a beneficiary has been involved and a Will is successfully challenged, they not only receive substantial benefit from the Will, but their desires can be seen in the Will that results. The present case is not one of those cases.

(viii) There is likewise no evidence of pressure from Susie in the creation of the Will.

(ix)   The contemporaneous alterations to the Letter of Wishes do, in fact, make sense. The alteration regarding Lucy directly reflects her demands on Richard at the time. The fact that he made the changes shows strongly that he did understand the 2009 Will and Letter of Wishes.

(x)   The “lack of any record” that the changes were explained to Richard is a particularly bad point, given the extensive records of the Will being explained to him and the evidence of Ms Harris that the important provisions of the Will would have been explained to him on the day.

(3)   If the Court is required to go on to consider whether Richard had knowledge and approval, the test remains the simple one of whether the 2009 Will reflected his intentions. It plainly did so. In particular:

(i)     There are good reasons to believe that Richard understood sufficiently well the nature of the office of executor and trustee. Among other things, he was a long-standing officer of listed companies and charities and had in fact obtained a law degree. He did not have an unsophisticated mind.

(ii)    In so far as it is Lucy’s case that Richard failed to consider the effect of the strained relations between Susie and others, it is based on the false premise that Susie would never make distributions to (for example) Lucy and Mary. Moreover, even if that premise were true, Richard had been aware for many years of the relationships between family members, and there is nothing to suggest that he would not properly have considered them here.

(iii)   The suggestion that Richard failed to understand the tax effect (given the probability or risk that Susie would never allow any distributions to anyone) ignores the competing demands that existed in respect of the residue of Richard’s UK estate and Richard’s desire that the BPF should, if possible, be conserved as a dynastic asset, all of which he understood.

(4)   The Withers documents and the evidence of Mr Cooke and Ms Harris show very clearly that the 2009 Will represented Richard’s intentions.

(5)   Richard received the 2009 Will and Letter of Wishes by both email and letter and that they remained in his possession until he became ill in 2011. He had ample opportunity to review them and had he not understood, or had they not reflected his wishes, he could have amended them, but he never sought to do so.

(6)   The jurisdiction pursuant to which the Court may omit from probate particular words of a Will where they did not reflect the testator’s intentions has become largely redundant following the passing of section 21 of the Administration of Justice Act 1982, not least because that section permits the court to add words as well as to omit them. This jurisdiction could not properly be applied here. In Fuller v Strum [2002] 1 WLR 1097, Peter Gibson LJ said at 1108 “I do not doubt that it is possible for a court to find that part of a will did have the knowledge and approval of the deceased and another part did not. An example would be if a solicitor, who had been instructed to draft a will, obtains the deceased’s approval of the draft but subsequently before execution adds a clause without drawing it to the attention of the testator and keeps the executed will. But the circumstances in which it will be proper to fund such a curate’s egg of a will are likely to be rare”. None of Lucy’s evidence or cross examination has been directed at the possibility that Richard understood fully the remainder of the 2009 Will but not the appointment of Susie. Further, to exclude that part alone from probate would disturb the whole balance of the Will and so create a Will that does not reflect the testator’s intentions at the relevant time, and this would not be right.’


On an evidence based review following disclosure, it should therefore have been apparent, that the element of the counterclaim based upon the allegation of suspicious circumstances, whilst properly arguable, was in fact hopeless, and would in all likelihood fail at trial. That was the reality.

It is not known to the author whether an application for Chancery ENE/FDR was considered or proposed e.g. at the CMC. If proceedings had been stayed on an application by consent, to permit ADR, then perhaps a deal could eventually have been done to:

  • spare the family from having its dirty linen washed in public;
  • for nuisance value; and
  • to demonstrate goodwill,

which would have resulted in a considerable saving in costs and thereby preserved the size of the estate pie for a reasonable settlement to have been agreed.

The moral of the tale

A bird in the hand is better than two in the bush.

As Lord Neuberger warned in Gill v Woodall [2010], the moral of Thornton & Ors v Woodhouse & Anor is that,

‘Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.’

Whilst the court may sympathize with an adult child of the testator who has been ‘cut-out’ of the will, they have no power to rewrite the testator’s will, or to make a determination based upon a moral sense of ‘right’ or ‘wrong’. Consequently, where clear ‘cold-headed’ mathematical calculation is substituted by ‘wishful thinking’, a claim is likely to fail. To succeed, what is required from the outset, is a critical forensic examination and evaluation of the legal merits, remedies, costs, and litigation risks, tempered by realism, i.e. clinical ‘due diligence’. The claimant can then make a calculated and informed decision about whether the candle is going to be worth the flame.


Getting it right from the start

The Bar Standards Board Handbook (April 2017) states,

‘rC3   You owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law)… 

rC9     Your duty to act with honesty and integrity under CD3 includes the following requirements: …

  1. you must not draft any statement of case, witness statement, affidavit or other document containing:
  2. any statement of fact or contention which is not supported by your client or by your instructions;
  3. any contention which you do not consider to be properly arguable;
  4. any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud…’

The Chancery Guide (2017) further states,

‘Setting out allegations of fraud 

10.1   In addition to the matters which PD 16 requires to be set out specifically in the particulars of claim, a party must set out in any statement of case:

  • full particulars of any allegation of fraud, dishonesty, malice or illegality; and
  • where any inference of fraud or dishonesty is alleged, the facts on the basis of which the inference is alleged. 

10.2   A party should not set out allegations of fraud or dishonesty unless there is credible material to support the contentions made. Setting out such matters without such material being available may result in the particular allegations being struck out and may result in wasted costs orders being made against the legal advisers responsible.’ 

Before accepting instructions about drafting a statement of case where a claim has been formulated and thought through by a solicitor or the lay client, it is therefore incumbent on Counsel to scrutinize and properly evaluate the basis and merits of the claim before putting pen to paper.

Therefore drafting should always be preceded by an independent claim analysis by counsel.

In a contentious probate claim, because an executor may be held personally liable for costs if he is considered to have acted unreasonably in bringing legal proceedings against a third party for the benefit of the estate, or in defending proceedings brought against him as an executor, this analysis includes consideration of whether or not an application needs to be made for directions to bring or defend legal proceeding (i.e. for a Beddoe Order), to obtain costs protection before engaging in litigation. As an application will not be necessary where all the beneficiaries are ascertained, competent and agreed as to the course they want the executor to take, counsel will first need to establish whether in fact all of the beneficiaries have been ascertained, consulted, and are agreed.

The litigation risks of a solicitor who is not a specialist will, trust, and inheritance dispute practitioner, of formulating a misconceived claim, include; (i) striking out; (ii) summary judgment, and (iii) the award of a wasted costs order against the solicitor.

The perils of a solicitor formulating a legally defective claim, which regrettably is not entirely unknown in the field of contentious probate, are highlighted by the following remarks made by Master Matthews in Haastrup v Okorie & Ors [2016]:

  1. It is a matter of discretion in the court as to whether to strike out a claim for lack of reasonable grounds for bringing a claim. It is after all a strong thing to drive the claimant from the judgment seat. But despite the increasingly ingenious arguments of Mr Kolick (who, I emphasise, was not responsible for advising the Claimant to bring this action or for drafting the claim in support of it) it is clear that this claim was badly thought out from the beginning. It does not matter whether the Claimant was badly advised (and, if so, by whom) or whether he was advised of the risks and nonetheless insisted on going ahead. The bitter squabbles between the parties in this and the many other legal actions which they have launched against each other in this country have had more than their fair share so far of the limited resources available in our legal system. There are other claims still to proceed. This is no time to be carrying expensive passengers.
  2. On this basis I will strike out the claim in its entirety, as not disclosing any reasonable grounds for bringing the claim. The First Defendant’s application notice alternatively asks for summary judgment for the First Defendant, on the basis that the Claimant had no real prospect of succeeding at trial, and that there is no other compelling reason for a trial. Strictly, I do not need to deal with this alternative application. However, I will say this. On the material presently before me, but bearing in mind of course that the summary judgment jurisdiction was not the particular focus of the arguments made before me, I consider that, if I had not struck out the claim, I would have given summary judgment for the First Defendant…

The moral of the tale for lay clients is, get it right from the start, by instructing a specialist contentious probate practitioner, and if counsel is a registered public access practitioner and is authorised to conduct litigation, you can instruct him directly from the outset. You do not need a solicitor.

The moral for solicitors, particularly commercial and general civil litigators who dabble in contentious probate, is beware of your limitations, as the consequences are likely to prove expensive.