The following is an extract from the ‘Advocacy’ section of my forthcoming book, the 2nd edition of the ‘Contentious Probate Handbook’, for publication by the Law Society of England & Wales. I finished this note today, and am updating and writing-up the remainder of the chapter on ‘Litigation’ i.e. civil procedure and practice in Contentious Probate claims, over the next six weeks. Note that Family Provision and Proprietary Estoppel are not Contentious Probate claims. In the words of Michael Caine – ‘Not a lot of people know that!’

Extract:

‘The Closing Speech – This is when you join-up the dots. “Closing is when you draw together all of the case, all the answers from the witnesses, all the legal incidents which arose at trial, and you present your theory of the case… Closing is all about persuasion… This means 100% comment. It is not about the facts; it is about comment on the facts. It is not about repeating what the facts were: it is about explaining why the facts as they emerged in trial mean you win.” (Morley [NB I will insert the full citation in the text of the book]). Based upon your portrayal of: (i) the character of T [i.e. of the deceased testator]; (ii) of each P [i.e. each party]; (iii) of T’s relationship with each P; and (iv) of the underlying inter-family dynamics, i.e. the relationship of each P with every other P, including e.g. ‘sibling’ rivalry and the ‘tribal’ loyalties of the other witnesses of fact, does the evidence fit with your case theory? Is there any other credible hypothesis? If you persuade the judge that the answer to the former question is – ‘Yes’, and the answer to the latter question is – ‘No’, then the judge can find that you have discharged the burden of proof by preferring the narrative of your client. If you fail, then your opponent wins. It is as simple as that. Ultimately an advocate is a salesman/saleswoman.’

While researching the Litigation chapter I was shocked and saddened to learn that Blackstone’s Civil Practice has been discontinued. I will nevertheless make references to useful commentary in the 2023 edition – which was the final edition of this legendary tome. Times are changing!