This morning I signed an authorship contract with the Law Society for the 2nd Edition of the Contentious Probate Handbook. The first topic I am tackling is ‘Undue Influence & Fraudulent Calumny.’ Later in the year I will revise and update the Chapter on Litigation. As any Barrister who is worth their salt will tell you – ‘Justice is barely on nodding terms with the law’. To survive in the litigation jungle, you must not make things worse by taking any step in litigation which can result in the law being used against your client. My own view for what it is worth, is that unless your client has to, they should not go anywhere near the courts. To understand why, you only have to read two of my blogs:
- ‘Making an educated guess in any case is an unreliable method of quantification, because a belief may subsequently turn out to be based upon a false premise. By contrast with an empirical method, “best thinking” based upon supposition is both subjective and arbitrary. Consequently, it is prone to bias, which could result in an appeal. Has this decision increased the litigation risks involved in these claims, by adding yet another element of uncertainty into what is already a rather muddled, incoherent and unstable equation? Has the court just pushed up the price of doing a deal in mediation, i.e. where mediation is preceded by the making of a Part 36 Offer? I think it has. The problem now, is working out in any given case, “by how much?” Therefore, the earlier parties proceed to mediation, the better.’ – ‘CFA fees in Inheritance Act claims’ | Carl’s Mediation Blog (wealthplanning.tv)
- ‘Where e.g. in a substantial e.g. £1m + self-dealing claim there has been no allocation to track prior to the first CMC, and prior to the hearing property is voluntarily transferred back to the estate by the fiduciary without making any admission of liability, i.e. by the allegedly self-dealing executor, this may provide the executor’s counsel will a specious argument that because what else remains in the claim appears to be relatively modest by comparison – and of course where an inventory and account is being sought, it will be an unknown and indeterminate value, that the Fast/Intermediate Track is per se appropriate, and therefore in relation to a claim for the recovery of costs regarding the self-dealing element of the claim, which will require a finding at trial of breach of fiduciary duty unless admitted, that only fixed costs should be awarded.- ‘New Fixed Recoverable Costs in Litigation Regime’ | Carl’s Mediation Blog (wealthplanning.tv)
Estate disputes should be mediated. The working draft already has a new chapter about Mediation and Mediating Estate Disputes – which is no place for amateurs because this is linked to complex tax-efficient settlement. Next year I will tackle:
- Removal of executors.
- Construction & rectification.
- Lack of capacity.
- Lack of knowledge & approval.