The Case Of The Missing Original Will – The Importance Of Obtaining Specialist Legal Advice

On a few occasions, members of our Inheritance Disputes team have attended initial meetings with clients who have felt that their contentious probate claims were easy to pursue and accordingly they have decided to go it alone without our help and advice, or that of any lawyer, let alone a specialist one. In truth, all litigation is risky to pursue without a lawyer. There are nuances and traps that can catch out the unwary.

When a client decides to act for themselves in respect of this kind of case, that is of course their choice but contentious probate claims are allocated to a specialist part of the Court (being the Business and Property Courts) for a reason. It is a highly technical area of law and, if general civil litigation is a risky business without a lawyer, contentious probate is even more so.

Given this, these clients have often come back to us later as they have fell into a trap with a view to us extricating them from it. By this point in time, the costs of us doing so are likely to be higher than the costs that we originally estimated for the whole claim, as further additional hearings and applications will be necessary and the client will invariably have damaged the case to some extent.

A case that highlights this point is the recently heard case of Face v Cunningham and another.

Face v Cunningham & Anor – the case of the missing original Will

In this on-going case, warring siblings are battling over the estate of their late father, Donald Charles Face, and none of the parties involved have legal representation.

The Claimant (Face) is attempting to establish that a 2017 Will, that was apparently lost, is actually the true Will that should be followed. The Defendants (Cunningham and Kaethner) are claiming that the matter should be dealt with by way of intestacy and that all three children should be equally entitled to their father’s estate.

It is fair to say that the parties did a poor job of preparing the case and in this regard the Judge was not coy in letting the parties know. He described the trial bundles as a “complete nightmare” and the witness evidence produced on behalf of the Claimant as “pure fiction”.

The case, by the time it reached trial, had already been subject to no less than 12 previous interim Court orders. This is highly unusual in a case such as this and must have arisen as a result of the lack of professional representation. His Honour Judge David Hodge QC stated that:

“If the late Sir Arthur Conan Doyle, or his worthy modern-day successor Mr Anthony Horowitz, were to write up the events which have led to this present, unhappy litigation, they would no doubt have titled the resulting chronicle “The Case of the Missing Original Will”. Sadly, this is the fourth significant contested probate claim involving one or more self-representing warring siblings upon which I have had to adjudicate in the Business and Property Courts in Liverpool within the space of the last two years.”

The risks are now all too apparent for the Claimant. The matter has now been referred to the Crown Prosecution Service for them to consider whether they are to pursue charges against the Claimant. HHJ Hodge confirmed that he totally rejected the evidence of the purported witnesses to the alleged Will and confirmed that he was sure that the alleged Will was forged.

The importance of obtaining legal advice

This case highlights why it is so important to seek expert advice in respect of specialist litigation such as contentious probate without delay. Parties who choose to act for themselves are unlikely to realise the risk that pursuing litigation, such as this, could well result in a prison sentence for them if it goes wrong.