CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – FURTHER MUSINGS ON PUT UP OR SHUT UP ORDERS
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss in more detail the application of “put up or shut up” orders to remove Caveats or allow for the secure administration of an estate by a Personal Representative notwithstanding notification of a Will validity claim
“Put up or shut up orders”
In our previous blog we discussed how “put up or shut up” can be used to remove spurious Caveats; thus avoiding the need to spend thousands of pounds bringing a primary action in the High Court to prove a Will. For reference please see:
Contesting a Will with WillClaim Solicitors: No Win, No Fee Specialists for Caveat Removal
The issue will often arise in disputed or contested Wills and estates because a Caveat is a cheap and easy to use legal device but offers extraordinary power, since it can completely block the administration of an estate. For those of you who follow the Ukrainian war, it is the equivalent of using a £500 drone to disable or destroy a multimillion pound tank – except that it costs just £3!
A “put up or shut up order” is not just about removing a spurious Caveat
A put up or shut order is not just about removing a spurious Caveat; the estate administration following the issue of a Grant (where no Caveat was issued or where it was removed or lapsed) can also be delayed where (usually) the professional administrator (possibly a Solicitor) has been notified of a claim against the legal validity of the Will and has refused to distribute until the claim has been disposed of (fearing personal liability if he or she does so – wrongly).
In fact in one of the leading cases in relation to this matter, Roger Bawtree Cobden-Ramsey v Julian Christopher Sutton [2009] WTLR 1303, this was exactly the issue. The Claimant was the executor of an estate and a challenge had been made to the legal validity of a Codicil by the Defendant on the grounds of capacity. The Defendant declined to pursue the claim by issuing the action under CPR 57 (to prove the Will was legally invalid). Although the Claimant could potentially avail himself of s. 27 Administration of Estates Act 1925, the defence it provided only applied if the Personal Representative was acting in good faith. Here of course he was fully aware of the challenge and therefore could not be said to be acting so.
A “put up or shut up order” can be made but by implication where reasonable enquiries have reached their conclusion
In Cobden Ramsey (above) it was found that a put up or shut up could be made although the circumstances in Cobden Ramsey appeared to indicate that it was only likely to be made where reasonable enquiries had finished and the Defendant was sitting on his/her hands in the hope or expectation of the delay leveraging a solution in his/her favour.
In Cobden Ramsey for example “the defendant’s enquiries appear to have ceased in October 2007. Thereafter apart from one letter to the claimant in February 2008, and the reply shortly thereafter, the defendant has taken no further steps” [the hearing was on 7 August 2008].
The Court in Cobden Ramsey referred for support to the Judgment of the Court of Appeal in Fitzhugh Gates v Sherman [2003] EWCA Civ 886:
In Fitzhugh Gates at paragraph 53 Lord Justice Carnworth commented (obiter):
The textbooks do not appear to offer an easy solution in such circumstances. There is no statutory time-limit for proceedings to challenge the validity of a will. It seems that an action may be struck out if there has been unreasonable delay, but the cases offer little guidance as to what this means in practice (see Williams op cit para 35-03; Re Flynn [1982] 1 WLR 310), or as to what directions the court can give. This subject was not explored in detail in the submissions before us. The powers of the court to control abuse and delay have been strengthened by the new Civil Procedure Rules. However, even before those changes, the court’s powers of direction under the old RSC Order 85 (administration actions) were very wide. I see no reason why they could not have been used to impose a time-limit on a potential challenge to the probate – in effect a direction to “put up or shut up” – following which the executor would be free to distribute under the will.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
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