Getting the other side to pay your legal fees

Under The Inheritance (Provision for Family and Dependants) Act 1975, the court has power in appropriate cases to “vary” the terms of the deceased’s Will or, if there is no Will, the Intestacy Rules.  If you can establish that you are a recognised applicant, (examples of which are spouses/former spouses, children, cohabitees and anyone who was being maintained financially by the deceased), and that the Will or the Intestacy Rules do not make reasonable financial provision for you, then the court can order such provision.

What happens, however, if you have a good “Inheritance Act” claim, but cannot afford to take it all the way to trial or settlement on your own?  As confirmed in a recent case, the answer is to make an application under Section 5 for an interim order.

If the court is satisfied that the applicant is in immediate need of financial assistance and that property forming part of the deceased’s estate can be made available to meet that need, then it can order either a lump sum or periodic payments or both.

In deciding what provision to make, the court should take into account the same factors as it would at the final hearing of the claim, including the financial needs and resources now and in future of the claimant and any other beneficiary of the estate, the size and nature of the estate and any other matter which the court thinks is relevant.

In the recent case of Weisz, the claimant was the deceased’s second wife and the defendants were his executors and trustees and the three children from his first marriage.  The estate was worth over £4,000,000.  Having decided that in terms of “immediate need” one needed to look at the position over the next year or so, the judge decided that the claimant was entitled to:

  1. Interim payments at the rate of £5,200 per month;
  2. Over £55,000 in relation to legal fees going up to the first hearing of the substantive claim. The judge thought it was wholly unreasonable to expect the claimant’s solicitors to “bankroll” the case to its conclusion.

As the price of obtaining such an order, the claimant had to give an undertaking to repay such sums, if any, as the court at the end of the day considered to be an overpayment.

Although there are very few case reports relating to these applications, it is of course a helpful reminder that this jurisdiction exists for the right case.

If you need legal advice on anything raised in this blog, please contact Paul Grimwood directly on pjg@hartbrown.co.uk or call 01483 887766.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Paul Grimwood

Partner, Head of Dispute Resolution & Accredited Mediator

As Head of Dispute Resolution, Paul has extensive experience of dealing with a wide range of disputes focusing in particular on professional negligence, contentious trust...

Partner, Head of Dispute Resolution & Accredited Mediator

Paul Grimwood

As Head of Dispute Resolution, Paul has extensive experience of dealing with a wide range of disputes focusing in particular on professional negligence, contentious trust and estate cases and Inheritance Act claims where he acts for both claimants and defendants, trustees, executors and beneficiaries.

He is a member of the Professional Negligence Lawyers’ Association and the Association of Contentious Trust and Probate Specialists. He is also an ADR Group Accredited Mediator. Paul has, in the past, appeared on local radio as a “legal eagle” responding to listeners’ queries.

Passing his Law Society finals with First Class Honours Paul originally trained at Hart Brown. Having spent two years sharpening up his advocacy skills at another firm Paul returned to Hart Brown as a partner.

As one client put it: “I am very impressed with his thoroughness” and another: “A very professional service delivered in a very personal way”.

“With Hart Brown I had complete success with my claim against my former solicitor. At all stages I had the confidence to proceed based on the clear analysis and communication of my position. I have no hesitation in recommending Hart Brown and particularly Paul Grimwood”.

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