Summary 9

Summary 9

Area of law: Probate
Complaint reason(s): Failure to advise, costs information deficient
Remedy: No remedy
Outcome: Ombudsman decision rejected by complainant

Miss A instructed the firm in probate matters. Her sister was contesting their mother’s will, as she felt her daughter, Miss A’s niece, had a legitimate claim on the estate.

The firm initially advised that, on the face of it, her niece appeared to have a claim, and advised Miss A to settle. Miss A had previously been to court, and had been told she could make a ‘strike-out’ application. She wanted to go ahead with this, despite the firm warning her that there was no guarantee of success.

Just before the hearing, Miss A was told by the firm that the other side would be willing to honour the original will, if Miss A abandoned her application.

Following this offer, confusion reigned. Miss A believed that the firm had advised her to proceed to court. The firm, however dispute this, and their attendance note says they had advised her to accept the offer, as they were worried that if the application failed, Miss A could have costs awarded against her. They thought Miss A had wanted to pursue the application, and so advised her when she would need to attend court.

Miss A attended court but her application was dismissed, and the other side’s costs were awarded against her. The firm advised Miss A against taking the case any further, but said that if she wished to do so, they would need her further instructions. They included an estimate of costs, believing it would cost £13,000 to take the case to trial, plus the other side’s costs. Miss A continued with the court case.

Miss A then fell ill, and the firm applied to the court to adjourn the hearing. During the adjournment an agreement was reached, awarding Miss A and her sister each 40% of the estate and Miss A’s niece 20%.

Miss A raised several complaints to the firm, including their failure to warn her that she may have to pay the other side’s costs, and that they continued to prepare for court, despite her instructions to settle. We found during our investigation that the firm provided adequate advice to Miss A in relation to costs, and their attendance notes would show that they warned her of the possibility of her having to pay the other side’s costs. We understand that Miss A is unhappy with the outcome of the court case, but do not feel that the firm is at fault. The ombudsman therefore did not award a remedy to Miss A. Miss A rejected the decision.