The Scope of The Code

1.1 This Code is intended to apply to “trust and probate disputes”, which are disputes about:

• the devolution and administration of estates of deceased persons; and
• the devolution and administration of trust funds.

This Code is not intended to displace other protocols if in the circumstances of the case they can be seen to be more appropriate.

The main types of disputes under this Code are:

• Contentious probate claims, which are challenges to the validity of a will, for example on grounds of want of capacity, want of knowledge and approval, undue influence or forgery
• Applications under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”)
• Applications for the removal of an administrator, executor or trustee or the appointment of a judicial trustee
• Applications for the rectification of a will, trust instrument or other document
• Disputes about the meaning of provisions in a will or a trust
• Administration applications
• Claim alleging breach of trust.

The ACTAPS Code may also apply to certain types of dispute where the provisions of a trust or the devolution of an estate are important, for example where a claimant seeks as part of their claim to set aside or overturn a trust or to take advantage of rights under a trust.

The Code has two aims:

1. To encourage the resolution of disputes without hostile litigation; and
2. Even where litigation may be necessary, to try to simplify the litigation by exchanging relevant information before litigation has commenced.

The Code is intended to cover most trust and probate disputes; but it is recognised that the appropriate investigations and exchange of information will vary according to the circumstances of the dispute. However one of its primary purposes is to provide for a special feature of disputes in this area, namely that there may be beneficiaries who cannot speak for themselves but whose interests must be protected, such as minors and unborns.

1.2 In cases where the express terms of the Code are not appropriate, parties should try to follow the spirit of The Code and seek to achieve its aims so far as practicable in the particular case.

1.3 There are certain cases in which a trust or probate dispute seeks to fulfil some non-contentious purpose. For example, the parties may be agreed that the best solution to some difficulty is to invite the Court to approve a compromise or where the objective is simply to find the cheapest way of protecting trustees or personal representatives against the risks involved in the existence of some theoretical doubt. In such cases the Code is unlikely to have any role to play.

1.4 An important feature of trust and probate disputes is that they may affect the interests of persons not of full capacity, as yet unborn or unascertained, or interested as members of a large class of persons who have similar beneficial interests. The Code is thus designed to make express provision for the need to find mechanisms that assist despite the absence of such persons (providing in particular an expedited process for Court approval of agreements reached in mediation). It is thus wrong in principle to regard a dispute as not amenable to the use of the Code just because there are persons concerned who cannot speak for themselves.

Letters of Claim

2.1 The Claimant shall send a letter of claim to each of the deceased’s personal representatives or to the trustees, as the case may be and, unless it is impractical (e.g. because there is a large class of beneficiaries or the beneficiaries are minors) to each beneficiary or potential beneficiary of the estate or trust fund likely to be adversely affected by the claim (referred to as “the proposed Defendants”), as soon as sufficient information is available to substantiate a realistic claim which the Claimant has decided they are prepared to pursue.

2.2 The letter shall contain a clear summary of the claim and the facts upon which it is based and state the remedy sought by the claimant.

2.3 A sample letter is set out at Annex A, which can be amended to suit the particular case.

2.4 In claims under the Inheritance Act the claimant should give details to the best of their ability of the matters set out in Section 3 of the Inheritance Act as relevant to the exercise of the Court’s discretion (see Annex A).

2.5 Copies of documents held by the Claimant that they wish to rely upon or which any other party is likely to wish to rely upon should be sent with the letter of claim. Examples of documents likely to be relevant in different types of dispute are set out at Annex B. These lists are not exhaustive. The letter of claim may specify classes of document considered relevant for early disclosure by the proposed defendants.

Letter of Response

2.6 Each of the proposed defendants should respond to the letter of claim within 21 days stating whether they admit or deny the claim, responding in outline to the matters of fact relied upon by the Claimant and setting out any particular matters of fact upon which the Defendant relies. If a proposed defendant intends to make a claim of their own, the letter of response should contain the same information and documents as a letter of claim. If a proposed defendant is unable to respond within the time limit on any particular matter, the letter of response should give the reasons for the absence of a full response and state when it will be available.

2.7 In claims under the Inheritance Act each proposed defendant should give details to the best of their ability of the matters set out in Section 3 of the Inheritance Act as relevant to the exercise of the Court’s discretion (and set out in Annex A).

2.8 Copies of documents in the proposed defendant’s possession which they wish to rely upon or which any other party is likely to wish to rely upon should be included with the letter of response. Examples of relevant documents in relation to different categories of disputes are set out at Annex B. These lists are not exhaustive.

Documents

2.9 In relation to the documents in Annex B, the personal representatives of the deceased (including executors named in the last alleged will of the deceased) or trustees as appropriate should provide copies of such documents (if available) to a party requesting a copy within 14 days of the date of a letter of request (or such other reasonable time as may be agreed between the parties) or, if a copy is only available from a third party with the consent of the personal representatives or trustees, provide to the party making the request written authority to the third party to provide a copy of the document to that party.

2.10 Trustees or personal representatives should give disclosure even if litigation has not yet started.

Applications for documents or information in control of third parties

2.11 In a probate dispute, medical notes may be highly relevant and it should be assumed for the purposes of the Code that they ought to be disclosed, unless there is a special reason not to disclose them.

2.12 If any parties make a request for medical notes, all parties shall (unless they have a good reason not to) within 14 days of any such request (or such longer period as shall reasonably be agreed):

(1) Sign and return to the party making the request, a joint application for the provision of copies of the deceased’s medical notes or social worker’s reports to all parties. An example of a joint application is at Annex C.

(2) Sign, and return to the party making the request, a joint application for a statement by the solicitor who prepared the will of the deceased setting out all the circumstances leading up to the preparation and making of the will (a “Larke v. Nugus request”). An example joint application is at Annex D.

2.13 The party making the request for a joint application for information or documents from a third party shall:

(1) Submit it to the third party within 7 days of receipt of the joint application completed by the other parties.

(2) on receipt of the information or documents from the third party check that they have been received by all other parties and, if not, provide them with copies within 7 days of receipt.

2.14 In cases where the mental capacity of a deceased at the date of a testamentary instrument is in issue, the party seeking to uphold the testamentary instrument should try to obtain a report as to the deceased’s mental capacity from the testator’s GP as soon as possible after the issue is identified and send it to all other parties within 7 days of receipt. An example letter of request is at Annex E.

Experts

2.15 Parties should consider the use of jointly instructed experts so far as possible. Accordingly before any prospective party instructs an expert they should give the other party a list of the name(s) of one or more experts in the relevant discipline whom they consider suitable to instruct.

2.16 Within 14 days the other party may indicate an objection to one or more of such experts and suggest alternatives. The first party should then, if possible, instruct a mutually acceptable expert.

2.17 If an expert to be jointly instructed is not agreed, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably. No party shall be entitled to instruct an expert proposed in a list of experts for joint instructions until it is clear that joint instructions cannot be agreed and thereafter the party who submitted the list of experts shall be entitled to nominate one of the experts on this list as their own chosen expert and no other party shall instruct any expert named on the list until such nomination has taken place.

Alternative Dispute Resolution

2.18 The parties should at all times consider whether alternative dispute resolution would be appropriate and should remember that the court may now order parties to engage in ADR. ADR comes in many forms and includes mediation, early neutral evaluation (court-based and private), financial dispute resolution (court-based and private), expert determination and arbitration. Not every form of ADR is appropriate to every case.

To
Defendant

Dear

Re:

The estate of [name of deceased]
The Settlement made by [Settlor] on [date]

We are instructed on behalf of [claimant] [give details of relief sought eg to seek reasonable provision out of the estate of the above-named deceased; to set aside probate of the will of the above-named deceased dated [date]; to seek a declaration that upon a proper construction of the above settlement our client is entitled to …]

The basis of our clients claim is: [brief outline]

The facts upon which our client relies are as follows:- [set out material facts with sufficient clarity and detail for the proposed defendants to make a preliminary assessment of the claim]

The details of matters to which the Court would have regard under Section 3 of the Inheritance (Provision for Family and Dependants) Act 1975 insofar as they are known to our client are:-

(a) Financial resources and needs of claimant;

(b) Financial resources and needs of any other claimant;

(c) Financial resources and needs of beneficiaries;

(d) Obligations and responsibilities of deceased towards claimants and beneficiaries;

(e) Size and nature of estate;

(f) Disabilities of claimants and beneficiaries;

(g) Any other matter; and if claimant spouse or co- habitee,

(h) age of claimant, length of marriage/co-habitation and contribution to family welfare.

We enclose the following documents which are relevant to the claim:-
[list documents]

In accordance with the ACTAPS Code for probate and trust disputes, we look forward to receiving a letter of response, enclosing the documents in your possession and relevant to the claim within [21] days. We believe that the following documents relevant to the claim are likely to be in your possession:- (list documents)

Pursuant to the ACTAPS Code as [personal representatives of the deceased/trustees of the settlement] we invite you to furnish us within 14 days of the date of this letter with copies of the following documents or written authority, in the form enclosed, to obtain copies of such document(s):- [list asterisked documents required]

We have also sent a letter of claim to (name and address) and a copy of that letter is enclosed.

Yours faithfully

All documents upon which you rely or upon which the other party is likely to wish to rely including but not limited to the following categories:

1. In disputes in which the assets of an estate/trust fund or the financial resources of an individual are relevant; eg claims under the Inheritance Act, breach of trust claims:

– Any inheritance tax forms, such as the IHT100 and IHT400;

– A schedule of the capital assets (with values, estimated where appropriate) and income of the estate, trust fund or individual as appropriate;

– Trust or Estate Accounts.

1. In disputes in which the mental capacity or medical condition of an individual is relevant, eg challenges to testamentary capacity, Inheritance Act claims where disability is alleged:

– A copy of the medical records of the individual or, if appropriate, the written authority of the personal representatives of a deceased to obtain those medical records together with an office copy of the grant of probate or letters of administration or other proof of their status.

1. In disputes as to the validity, construction or rectification of a will or other testamentary instrument of the deceased:

– A statement setting out details of any testamentary document within the knowledge of the claimant or proposed defendant and details of the name and address of the person who, to the best of their knowledge, has possession or control of such script.

To ensure that the correct documents are identified, the parties should check:-

(i) with all known solicitors of the deceased as to the existence of a testamentary document;

(ii) with all attesting witnesses to testamentary documents as to the existence of testamentary documents;

(iii) with all named executors of testamentary documents as to the existence of testamentary documents;

(iv) with immediate family members (brothers, sisters, parents and children of the deceased) as to the existence of testamentary documents.

Testamentary documents are:

A will, a draft of a will, written instructions for a will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed. The word “will” includes a codicil.

JOINT APPLICATION FOR MEDICAL NOTES OR SOCIAL WORKER’S REPORTS

To: The medical records officer/social services

Dear [job title]

Re: (Name) Deceased of (address), (date of birth)

We are (1) the solicitors instructed by [the [Executors named in the Will] of [deceased’s name] of [deceased’s address]] who died on [date of death] and (2) the solicitors for [parties interested in the deceased’s estate]. We hereby authorise you to forward [a full set of copies of the deceased’s Medical Records] [all social workers reports and notes relating to the deceased] to each of our firms.

We confirm that we will be responsible for your reasonable photocopying or scanning charges and your invoice should be sent to [firm’s name] and marked for the attention of [person responsible].

Dated [                                  ] 20[     ]

Signed
…………………………………………….

Signed
……………………………………………..

 

Joint Application Letter to solicitors who prepared Will requesting Larke -v- Nugus Statement

Dear [law firm name]

[Name of Deceased] deceased

We are (1) the solicitors instructed by [the [Executors named in the Will] of [deceased’s name] of [deceased’s address]] who died on [date of death] and (2) the solicitors for [parties interested in the deceased’s estate].

We understand that you drafted the deceased’s last will dated [                 ].

This is a Larke v. Nugus letter. We hereby request and authorise you to forward to each ourfirms statements from all appropriate members of your firm on the following points:

• How long had you known the deceased?
• Who introduced you to the deceased?
• On what date did you receive instructions from the deceased?
• Did you receive instructions by letter? If so, please provide copies of any correspondence.
• If instructions were taken at a meeting, please provide copies of your contemporaneous notes of the meeting including an indication of where the meeting took place and who else was present at the meeting.
• How were the instructions expressed?
• What indication did the deceased give to you that he knew he was making a will?
• Were you informed or otherwise aware of any medical history of the deceased that might bear upon the issue of his capacity?
• Did the deceased exhibit any signs of confusion or loss of memory? If so, please give details.
• To what extent were earlier wills discussed and what attempts were made to discuss departures from his earlier will- making pattern? What reasons, if any, did the testator give for making any such departures?
• When the will had been drafted, how were the provisions of the will explained to the deceased?
• Who, apart from the attesting witnesses, was present at the execution of the will? Where, when and how did this take place?
• Please provide copies of any other documents relating to your instructions for the preparation and execution of the will and surrounding circumstances or confirm that you have no objection to us inspecting your relevant file(s) on reasonable notice.

We confirm that we will be responsible for your reasonable photocopying or scanning charges and your invoice should be sent to [each firm’s name etc] and marked for the attention of [each firm’s person responsible].

Dated this [         ] day of [                                                ] 20[   ]

Signed
…………………………………………..

Signed
………………………………………….

LETTER TO DECEASED’S GP REQUESTING REPORT AS TO MENTAL CAPACITY

To: Deceased’s GP

Dear Dr …..

Re: (Name) Deceased of (address), (date of birth)

We are (1) the solicitors instructed by [the [Executors named in the Will] of [deceased’s name] of [deceased’s address]] who died on [date of death] and (2) the solicitors for [parties interested in the deceased’s estate].

We enclose a copy of the deceased’s last Will.

The question of the deceased’s mental capacity at the time of the making of the last Will dated has now been raised.

The test of testamentary capacity remains that established in the case of Banks -v- Goodfellow where it was said:-

“It is essential that a testator (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; and (3) shall be able to comprehend and appreciate the claims to which he ought to give effect, and; with a view to the latter object, (4) that no disorder of mind shall poison his affections, pervert his sense of right or pervert the exercise of his natural faculties; (5) that no insane delusions shall influence his mind in disposing of his property and bring about a disposal of it which if his mind had been sound, would not have been made.” (We have added numbers for convenience).

[Set out the nature of the Estate if complex].

We would therefore be grateful if you would kindly provide us with a report setting out:-

1. Your medical qualifications and your experience in assessing mental states and capacity
2. For how long you were the deceased’s GP, how well you knew the deceased and a summary of their medical condition, insofar as it may have bearing upon the deceased’s mental capacity.
3. Your findings as to the deceased’s mental capacity at and around the time of the date of their last will.
4. Please also deal with any mental disorder from which the deceased may have been suffering at the relevant time, and any medication which could have affected their capacity as detailed above.
5. Please also consider any issues of vulnerability or suggestibility at or around the date of the deceased’s last Will

We confirm that we will be responsible for your reasonable fees in the preparation of your report which we look forward to receiving as soon as possible.

Dated this [        ] day of [                                                        ] 20[    ]

Signed
……………………………………………………. (ref:                               )

Signed
……………………………………………………. (ref:                               )