Witness Statement

[Golden]

Hello, I am involved in a Will dispute and have some questions about witness statements. A number of friends of the Testator have offered to provide a Witness Statement to defend the challenge of testamentary capacity and undue influence. In the beginning I brought this up with my contentious probate Solicitor and she strongly suggested not to pursue it as she said it was unnecessary at that stage and would be costly to prepare. However, five years on (with no settlement on the horizon due to an unreasonable/unwilling caveator), I would like to revisit this as the Testator's friends are getting older. I feel it would be good to get them done at this point and sharing them with the caveator might also show him that there are people supporting our defence.

My Solicitor told me that she/colleague would have to prepare them as there will no doubt be cross-examination on the points and any opposing counsel will try to undermine the reliability of the statements (by saying they have been prepared by me if I prepared them myself, for example).

To do this through the Solicitor would be a costly exercise. I wondered if there are any other options out there that I am not aware of or haven't considered. I should also mention that the dispute is unlikely to go to court due to the modest amount of the estate in question, therefore I wonder how much relevance I should put on the comments about cross-examination.

Any advice greatly appreciated. TIA.

[atticus]

If the case has gone on for 5 years and there is no settlement on the horizon, how can you be confident that the case is unlikely to go to court? Your solicitors have to allow for that unlikelihood.

In theory, anyone can prepare a witness statement. But read and understand the relevant provisions of Practice Direction 32, not least paragraph 18.1(5).

[Golden]

Thanks Atticus. Perhaps I could share a copy of the letters with the Caveator (on a WP basis), rather than formalise them at this stage and say that they will be formalised at a later stage, if necessary.

[atticus]

That is something on which your lawyers should advise.

[atticus]

NB what if your witnesses are not available to make statements at a later stage? Stuff does happen.

[Golden]

Yes, that was my concern. Are there any cheaper alternatives to a Solicitor that provide this service?

[atticus]

Having been a practising solicitor, and very much involved in interviewing witnesses and preparing their statements, I never had cause to enquire whether such a service exists.

[Golden]

I have spent just shy of £43,000 in legal fees during the past 5 years and I have got nowhere with the dispute. My Solicitor quoted £1,000 - £1,500 per witness statement and there are four people who want to provide statements. I cannot afford to spend between £4,800 - £7,200 to prepare these four statements.

I thought it was worth asking the forum whether there is a cheaper alternative out there or any other ideas. The Solicitor I have used in the past is not instructed any more as I simply could not afford to continue paying for ongoing legal advice. Any comments/suggestions (or PMs) greatly appreciated.

[Pezza54]

Just an idea.to save money.
You could ask these 4 people to make written witness statements themselves.
If they are incapable, perhaps too old, you could video an interview with them, copy it to memory stick. Make a transcript of the conversation onto their witness statement and ask them to sign it.
Witnesses should concentrate on lucid conversations, or intelligible correspondence they had with the deceased after the will was made. Exact dates of these conversations with the deceased are not necessary, just "on or about ......."
There is plenty of info on the internet about the format of witness statements.
A witness statement should be in the witnesses own words. A solicitor can edit the statement.

[Pezza54]

Your first post said the estate was worth a modest amount, yet you have spent £43k in legal fees to date. What do you call a modest amount?

[Golden]

Thanks for your suggestion PEZZA54.

All four witnesses wrote their own draft statements and sent to me by email (around 4 years ago). They are all still in touch with me, have capacity and are willing to do what they need to do to complete the process.

My problem has been the Solicitor (who is not instructed any more). In the beginning, she advised me not to focus on the statements as she felt it was unnecessary at that stage and would be costly to prepare. However, I am now in year 5 of the dispute. The Claimant/Caveator took a different approach and he prepared Witness Statements and sent these with the Letter of Claim (4 years ago).

I feel that sharing these Statements with the Claimant at this stage may help him see that he needs to engage in positive dialogue and try to reach an agreement with me. Plus, if it did ever go to court, I would have the statements already prepared (as the witnesses are getting older).

Is it normal for it to cost so much (£4,800 - £7,200) to prepare 4 statements? They are only short statements (1-2 pages per statement) and have already been written/prepared by each witness. The part I need assistance with is having them formalised and signed (using a third party) as I do not want to get involved in the process (as I am the defendant in the dispute).

Regarding your most recent question, the amount being disputed is approx. £90,000. Unfortunately, the money is not the only issue. The Claimant/Caveator also has some deep resentment which surfaced upon the death of the Testator. I feel that this has also complicated matters.

[atticus]

What exactly has happened so far? For forty plus grand in legal fees surely you and your opponent are a significant way down the litigation road.

I must say that the cost to prepare statements based on what you already have seems surprising, even if the solicitor wants to meet the people face to face. Will there be much travel involved?

[atticus]

NB you could diy - but read the information in the link I gave you at the outset.

[Pezza54]

I suspect the solicitor will come on the gravy train

[Golden]

"What exactly has happened so far?"

In a nutshell:

2019 - Testator died.
2019 - Caveat lodged by family member - he is contesting the validity of the Will. His reasons are claims of lack of testamentary capacity, undue influence and lack of knowledge and approval. The Caveator wants to use the previous Will (as it will benefit him more from a financial standpoint - he gets £90,000 more in the earlier Will).
2019 - Larke vs Nugus request by Caveator.
2019 - Larke vs Nugus Statement & will file notes provided by Solicitors that drafted/executed the Will.
2019 - Medical records obtained by Caveator.
2020 - Letter of Claim sent to me by Caveator.
2020 - I prepared and sent a Letter of Response to the Claimant (Caveator) - this alone cost around £10,000 through the Solicitor.
2020 - I put forward a settlement offer which was not accepted by the Claimant.
2020/2021 - Multiple (unreasonable) counteroffers sent to me from Claimant which I did not accept. My Solicitor at the time agreed they were unreasonable and weighed heavily in favour of the Claimant.
2022 - Due to lack of funds no movement on the dispute.
Early 2023 - I reached out to the Claimant to try and engage in negotiations. Claimant uninterested. I threatened a Warning.
Mid 2023 - I served a Warning.
Mid 2023 - Appearance was made by the Claimant.

We are now in year 5 and the Claimant has still not issued proceedings but will not engage with me either. My Solicitor in the past has told me that the (Claimant's) claim will be difficult to sustain and if it was to go to trial, the Will would be proved. However, my Solicitor also said that there is always a significant litigation risk and we do not know what evidence will be put forward in the course of litigation, particularly expert evidence.

Next steps I am considering: prepare and share the Witness Statements with the Claimant. Put pressure on Claimant to negotiate.

I would also like to learn more about the Cobden-Ramsay order (Put Up or Shut Up). I have posted about this on the forum in the past, but never got any responses. I don't really know what else I can do at this stage.