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Standstill Agreements in Contentious Probate claims

Reasons to choose Wilson Browne

Until the decision in Cowan v Foreman by Mostyn J in March 2019…

…standstill Agreements were often used by contentious probate lawyers in claims under the Inheritance (Provision for Family and Dependants) Act 1975 to avoid having to issue proceedings where discussions were ongoing.

The Cowan case sent shockwaves through the legal profession and had all those who had entered into such agreements with their opponents reaching for the claim form.

Thankfully, on Appeal, the decision was reversed and Standstill Agreements are once again available to lawyers who need more time to try to resolve a claim.

On this specific issue, Lady Justice Asplin in the Court of Appeal agreed with Mostyn J at first instance that Standstill Agreements cannot bind the court but stated “without prejudice negotiations, rather than the issue of proceedings should be encouraged”.

Lady Justice King made the observation in her judgment that particularly where the issuing of a claim can itself make the prospect of settlement less likely standstill agreements will often be appropriate.  Lady Justice King was clear, however, that “if parties choose the ‘stand-still’ route, there should be a clear written agreement setting out the terms/duration of such an agreement and each of the potential parties should be included in the agreement.”

Overall then, Standstill Agreements may still be entered into but parties do so at their own risk.  If negotiations break down and the matter comes before the Court, the Court will look at the specific circumstances of the claim and the reasons for the delay in issuing proceedings.  Lady Justice Asplin stated that “Although the potential claimant will have to take a risk if an application is made subsequently to extend time in circumstances where negotiations have failed, if both parties have been legally represented, it seems to me that it would be unlikely that the court would refuse to endorse the approach”.

Common sense should be used when employing Standstill Agreements but they do have a place and can be very effective in saving Court costs for parties.

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