By Katherine Ellis
Legacy Consultant and Solicitor
31 October 2023
Whichever end of that love it or loathe it spectrum you find yourself on, here are my five top tips for ensuring smooth management of your contested estate file from the get-go.
It can be daunting when first notified of a challenge to an estate in which your charity has an interest, so much so that it can be tempting to seek advice from external solicitors right away. Before you do though, take a breath and think about the information which has been provided to you so far (if any) and whether this is sufficient to enable the external solicitor to provide you with initial advice (and a cost quote!) which has any real value to your charity. Information which is likely to assist your external lawyer includes:
Once you have established the above (and even if the answer is a negative to some or all of the items listed) you will be better placed to provide full initial instructions to your external solicitors. Providing your solicitor with these details will assist them in understanding the type of claim they are considering and the parties involved (including the family dynamics), as well as helping them identify the gaps in any information which may need to be obtained.
If you are a charity with little experience of contested legacies, you may take some comfort from seeing the names of larger and/or national charities, alongside your organisation, in the will. Working in collaboration with them will likely ensure you feel more supported.
For those larger charities, the same can apply, but it can also be helpful to identify instances where you may well be the most experienced case handler on the list and so your co-beneficiaries may be looking to you for guidance and support.
If more than three charities are involved, then consider appointing a lead charity. This can be especially useful if one of the legacy officers involved has specialist knowledge and experience when it comes to dealing with matters of a contentious nature. It can also help to take the pressure off the other charities and can assist in keeping legal costs to a minimum.
A warning however to those who act as lead charity or those who rely on the lead to guide them – acting as lead is a careful balance of distributing information/updates, collating responses, sharing ideas and offering support; it can easily stray into advising the other charities, which the lead should not do. Instances can arise where a route which is best for one charity may not be the best option for another and therefore each charity must make sure it is itself considering the advice from the external solicitors and the options available in the context of its own organisation, rather than seeking to solely rely on the thoughts, views, and preferred approach of the lead charity.
Contentious legacies come in all different shapes and sizes and often this means a one firm (or one solicitor) fits all approach to every contested case is not the best way to approach matters. When deciding which solicitor and firm to instruct it can be useful to consider:
As with most things in life, it is advantageous to have a range of options to choose from, rather than one firm which is guaranteed your charity’s work each and every time.
Much like when we ask for a minimum of two valuations (sometimes even three!) for an estate property, the same principle should apply to solicitors’ costs on contentious files. Whilst that does not necessarily mean the instructions should automatically go to the external solicitor offering the more competitive fee quote (the factors mentioned above still very much apply!), it is still wise to secure a minimum of two cost quotes to allow for choice and to evidence the fees quoted are in the right ballpark. It can also assist in demonstrating to the auditors that your legacy team is acting diligently regarding the charity’s expenditure and can also be a great way of adding value to your legacy files!
Any lawyer will tell you, there are no certainties in litigation and every case comes with an element of risk for all parties.
Whilst it is the role of the external solicitor to advise you, the outcome of contested legacies invariably rests not simply on facts and evidence, but also on the personalities of the parties involved in the dispute. As a result, there is invariably no right or wrong answer in matters of this nature and so you should not feel hesitant about asking questions, expressing an alternative view, or even challenging the advice where you have reservations about whether what is being proposed is in the best interests of your charity. Remember, the solicitors will likely be advising a number of charities, and it is your role to ensure that you are securing the required information and advice to equip you to act in the best interests of your organisation.
Whilst two contested legacy matters will never be the same, bear in mind the above initial steps and you’ll be placing yourself, and your charity, on the right road for a smooth(er!) journey.