How can someone initiate court action without the funds to cover defeat?

[Randolph]

Hi. I was wondering if anyone here could clarify what ought to be a fairly routine legal question to which I have so far been able to obtain no clear answer.

My partner is the administrator of her late father's estate. Her father died suddenly and tragically, intestate.

At the time, a woman was living in his house, which he owned outright, and had been for long enough to qualify as a co-habitee under UK law.

She has been able to hold up the probate and is making a claim under the Dependency Act.

I don't think her claim is very strong. Although they co-habited, the deceased kept his financial affairs strictly private and separate. We've asked to see bank statements covering the period before the death, and these have not been supplied. Rather tellingly, she has attempted to extract "interim payments" prior to the mediation stage. There has also been extensive theft from the estate, which we are able to prove.

Frankly, I think this woman is quite deluded, and is getting bad advice from the people around her. However, if mediation fails then the next step would be trial and this is where I am confused.

It is quite possible that in a trial scenario it will be determined that she has substantial savings, that she has materially benefitted from theft from the estate, and is able to support herself. So, in the event that she is awarded a sum equal to or less than that offered during mediation, logically she would be burdened with my partner's defence costs.

And so, I ask, if someone does not possess the means to pay in advance costs which are a reasonable hypothetical outcome, how can that person cause sundry defendants and legal professionals to be arraigned in the first place? I get the impression that even if a legal professional thought there was no chance of recouping their costs from the loser, they would refrain from offering that opinion so long as they were being paid a high hourly rate until that reality became apparent to everyone.

[atticus]

On what you say, this claimant may have a claim for some provision out of the estate.

A claimant is entitled to bring their claim. The court will rule on that claim.

From a defendant's point of view, there is always an economic calculation to be made. What are the chances of success? What will defending the case cost? How much is at stake? What is the claimant's abilty to pay costs if ordered to do so?

If the claim is hopeless, as you appear to believe, there may be strategies to apply pressure on the claimant or to cut things short. Your wife will no doubt be advised by her lawyers.

[Pezza54]

You stated your partner is the administrator for her late father's estate and she has requested his recent bank statements which have not been supplied.
The bank had a duty of confidentiality to the father when he was alive. This duty of confidentiality has now passed to your partner who is entitled to receive the deceased's bank statements.
If the bank continues to refuse these documents, your partner should write to the FCA and if this doesn't work, raise a complaint with the FOS.

[PallasAthena]

I'm wondering whether formal Letters of Administration have been granted to make your partner the legal Administrator of the Estate as you the say the woman has been able to hold up probate.

If your partner has been granted formal Letters of Administration (Probate) then the bank cannot withhold banking information and you should complain as suggested above. However if your partner is acting informally as administrator and doesn't yet have a formal appointment as Administrator the bank is entitled to refuse the information at this time.

[atticus]

Might it be the claimant's bank statements that have not been provided? that was my reading.

[Pezza54]

The only way a person can hold up probate is by applying to the Probate Registry for a caveat. A caveat is not suitable for a claim under the Inheritance (Provision for Family and Dependents) Act 1975. A different legal route is necessary.
If a caveat is awarded, the executor may apply to the PR for a "warning" to be issued to the caveator. The caveator then has 14 days to respond, known as an "appearance"

[atticus]

Or by not getting on with applying for a grant!

[Randolph]

Might it be the claimant's bank statements that have not been provided? that was my reading.

Hello Mr Finch. You are correct - it is the claimant's bank statements that have not been provided. My apologies here, I ought to have been clearer on that point.

I do not believe the claimant's case is hopeless. Indeed, she has co-habited for the minimum two-year period and meets several of the criteria in the legislation. However, she has declined so far to produce statements for accounts for the period prior to the death. As she has worked, yet contributed in no way to the value of the estate, I believe it a reasonable assumption that she has, or had, savings. While I understand a claimant's savings may not affect the outcome of the claim per se, I consider it relevant to someone's pleas of poverty if they actually do have savings.

Somewhat more interesting than the elusive bank statements is an extensive catalogue of disappeared machinery, tools and fishing equipment worth over ten thousand pounds, taken during a period where due to something of a legal grey area, this lady was permitted to stay in the house. We obtained photographs of these items in situ taken on four occasions, and were able to establish not only when they disappeared, but that when they did, only this lady held the keys, with no sign of forced entry etc.

Not only is this an aggravating factor, but neither these items nor proceeds from their sale have been mentioned in any statements by her regarding her financial situation, which at this point have been sworn as true, signed, and filed with "the courts".

My partner's solicitor advises that although 'conduct' will be considered, it won't be the only consideration. My position is that the evidence we have constitutes proof of theft and would be very difficult to defend against, and should be brought up during mediation. I think that the value of stolen property and the fact of their theft should remain front and centre.

Obviously, I don't want to go to court. I don't want my partner to go to court. I'd really rather this woman went away. But, since the prospect of court action is a threat that has been made against my partner, I do find myself making the economic calculation you mentioned above. I simply cannot see anyone taking on the job of defending against a claim if there wasn't a pretty solid chance of getting paid. If she stands in a court of her own volition and says well yes, I did take those things and sell them, and I did have X savings, and I lied to the court about my assets, and then the court awards her equal to or less than what she was offered in mediation, and then she says oh well, I don't have any money, see you all later... who's paying for everyone's time here?

Surely, if I am to coax others into a court so as to have them listen to me and defend themselves against me, if it is a hypothetical possibility that I may lose the argument, I need some kind of material asset sufficient to guarantee the attending professionals getting paid for their valuable time.

I mean, if you've got someone trying to take you to court and they've got no money at all, and your lawyer is putting on his best suit and preparing his paperwork and getting ready to defend you, wouldn't you be a little concerned? It seems really strange. I don't feel very much like going near a courtroom if I'm the only one with the ability to pay costs.

[Pezza54]

It is possible that the claimant put the facts about her potential claim before a lawyer specialising in claims under the Inheritance Act. The lawyer decided she had a v strong claim and offered his or her services on a no win no fee basis.
Her lawyer would not be too troubled about her inability to pay the defence legal team costs if the claim was lost. She may have decided that as she had very little to lose it was worth taking the risk.

[Pezza54]

If the claimant loses the case and is unable to pay any or all of your defence team's legal costs, you will will remain liable for the outstanding amount.