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Contesting A Will or Trust – No Win No Fee (“CFAs”) and Alternatives

Reasons to choose Wilson Browne

Contesting A Will & Contentious Probate: Funding Your Claim.

No matter what type of claim you are pursuing, chances are we have funding options to suit…

There are a number of ways that we can help:

  • Legal Expenses Insurance –  You should check your insurance policies to see if they include legal expenses cover.
  • No Win, No Fee agreements –  Technically called “conditional fee agreements” they mean that you do not have to pay the cost of your solicitor if you lose your case. If you win then you may have to pay something out of the money recovered. This is as a result of changes brought in by the Government on 1st April 2013.

We do need to be clear from the start – it’s unlikely to be feasible to gain funding for No Win No Fee, for claims involving someone’s death where the claimed share of the estate is worth less than £150,000.

No win – no fee. What does it really mean?

What is a ‘no win no fee’ arrangement?

This is a Conditional Fee Agreement (“CFA”) with your legal team to assist you with funding your litigation.

The purpose of the CFA is to have a separate funding arrangement in place so that instead of paying your Solicitor’s legal fees as you go, these are deferred and only become payable at a later date if you win your claim.

Should you lose your claim you will not need to pay your legal team’s fees. However, there is a still a financial risk in respect of your opponent’s costs and other costs as your case progresses.

What is a win?

A win is considered to be anything that is retrieved from the Defendant as a result of the action that is taken against them. This can be by way of an agreement with the Defendant or Court Order.

What happens if I win?

In accordance with the terms of the CFA should you win anything your Solicitor’s fees will be triggered.

The Solicitor will seek to recover its normal fees from the Defendant. However, your solicitor cannot seek to recover any uplift by way of a success fee from the Defendant. Therefore, you will be required to pay the success fee to your solicitor.

What is a success fee?

A success fee is an uplift percentage on the Solicitor’s chargeable time that has been incurred up to the date you are successful. The reason for the uplift is because your legal team has invested time and resources in pursuing your litigation and undertaking work with the risk that it may not recover anything in the event you are unsuccessful.

Please note that a success fee can be from 25% up to 100% of your Solicitor’s normal chargeable time in progressing matters for you.

Will I have to pay the other side’s costs?

When taking out a CFA we would always recommend that you have effective after the event insurance (“ATE”) in place to safeguard you against any cost awards in the event you are unsuccessful.

At the outside of your claim an ATE provider will assess the likely prospects of success and the merits of your case when considering the premium to insure your claim.

Do I have to pay the ATE’s premium at the outset?

No.

The ATE provider’s insurance premium will only be triggered if you win and ordinarily will be based on a percentage, if not a fixed amount.

If you do not win and are required to pay costs to the Defendant the ATE provider will make a payment on your behalf up to the agreed limit.

Are all cases suitable for a CFA?

No.

An initial assessment of the risks and merits, and the likely prospects of success would need to be considered.

If I have a CFA arrangement will I still be required to fund disbursements?

Yes.

Any third expenses (“disbursements”) would not be met by your Solicitor.

You will be required to pay any Court fees and any other third party disbursements and expenses unless a separate disbursement funding arrangements or you choose to finance the disbursements by alternative means.

If a Solicitors Practice states it offers CFA’s do they have to take on my case?

No.

Whilst a solicitor’s practice may be willing to fund cases on a CFA arrangement it is solely at the firm’s discretion, down to their assessment of the risk in non-payment, and whether they are prepared to take it on.

Many people ask us about “no win – no fee” in relation to contesting a Will.

If a CFA is not right for you, you may be eligible for a fixed fee: we can guide you on your options after an initial discussion. Often, fixed fees apply to lodging caveats, standing search or drafting a Larke v Nugus request. (Typically, Larke v Nugus requests are made by disappointed beneficiaries who expected to be named in a Will but are not; and in circumstances where the testator’s testamentary capacity is in question).

Wherever possible we will look to see if your legal costs can be covered by legal expenses insurance of by the Estate or the other party to the dispute.

To discuss your claim just give us a call and we’ll go from there.