Will and trust disputes legal jargon buster

ACTAPS: this stands for the Association of Contentious Trusts and Probate Specialists. It is a group of advisors experienced in handling will and trust disputes.

 

ADR: this stands for Alternative Dispute Resolution. ADR is used to refer to attempting to settle a dispute other than at trial. The most common type of ADR is mediation.

 

Advocate: a person instructed to speak for a party at a hearing or at trial. It is normally a solicitor or a barrister.

 

Administrator: a person to whom letters of administration are granted.  They perform similar duties to an executor.

 

Beneficiary: a person who benefits / is entitled to benefit under a trust or will.

 

Case management: the pro-active management of the case by the court, normally through giving directions (instructions) to the parties. Whilst directions will be made to suit the circumstances of the particular case, in all cases the aim of these is to prepare a case for trial.

 

Case management conference: an interim hearing at which the court will decide how the case should proceed and will give directions.

 

Chancery Division: the name of the division of the High Court which hears probate disputes.

 

Claimant: the person bringing a legal claim.

 

Claim form: the formal document which starts a claim and sets out the basis and nature of the claim.

 

Costs: legal and other costs incurred by a party in pursuing or defending a claim. The payment of costs is always at the discretion of the Court. Normally, however, the’loser’ will be ordered to pay the ‘winner’s’ costs.

 

Costs budget: a schedule, which is approved by the Court, setting out the maximum costs each party can recover from the other party for each stage of the litigation if the court makes a costs order. Costs budgets are used in most multi-track cases.

 

Costs management: the pro-active management by the court of the steps to be taken and the costs to be incurred in the case so as to further the overriding objective.

 

Costs management conference: an interim hearing at which the court will consider the parties’ proposed costs budgets and at which final costs budgets will be set.

 

Costs management order: an order under which the court will control the parties’ budgets or costs. The court will make such orders where there is concern over the level of costs or proportionality – the level of costs compared to the value of the dispute.

 

Counsel: a barrister, usually instructed to give detailed advice on the strength of the claim or defence and/or to act as the party’s advocates.

 

CPR: Civil Procedure Rules – the court rules that govern the way that court cases are conducted.

 

Deed of variation: a legal document by which beneficiaries of a deceased person’s estate give up or vary their entitlement in favour of another person/people.

 

Defence: the document containing a detailed description of the response to and rebuttal of the claim.

 

Defendant: the person defending a legal claim.

 

Directions: instructions given by the court as part of case management, setting out how the case should proceed and setting a timetable for administrative matters.

 

Directions questionnaire: a document that must be completed by both parties’ legal advisers after a defence has been served (see service); the information supplied forms the basis of the court’s decisions about case management.

 

Disbursements: expenses incurred by a party’s lawyer on their client’s behalf.

 

Disclosure: the process by which each party tells the other what documents they have that are relevant to the case.

 

Enforcement proceedings: used by one party to enforce a judgment or order that the other party has not complied with.

 

Estate: the property (including money, property and other assets) belonging to the deceased to be distributed under a Will or under the Intestacy Rules.

 

Execution of a will: the process of signing, dating and witnessing a will and making it legally valid.

 

Executor: the person/people named in the will to deal with the administration of the deceased’s estate.

 

File/Filed: to deliver to the court.

 

Grant of probate/letters of administration: authority for an executor/administrator to do with the assets of an estate.

 

Incapacity: a situation where a testator does not properly  understand the significance of executing a will. A will executed when a testator lacked capacity will be invalid.

 

Inheritance (Provision For Family and Dependants) Act 1975: the Act which allows certain groups of people to make a claim against the deceased’s estate for reasonable financial provision.

 

Interim hearing: a hearing during the course of an action, other than the trial itself, which normally deals with administrative matters.

 

Intestacy: a person who dies without a valid will disposing of his entire estate is intestate (or partially intestate).  The division of their estate will be distributed in accordance with intestacy rules.

 

Issuing/Issue a claim: the process of formally starting proceedings by delivering a claim form to the court, paying the correct fee and obtaining the court stamp.

 

Judgment: the court’s decision following a hearing or trial.

 

Judgment in default: judgment given by the court because the claim was not acknowledged or because no defence was put in.

 

Letter of claim: sent to the defendant by the claimant, setting out the basis of the claim, before proceedings are issued at court.

 

Letter of response: the defendant’s response to the letter of claim.

 

List of documents: where each party lists the documents in their possession or control in order to comply with disclosure.

 

Litigation: the process of pursuing a claim by formal legal proceedings.

 

Multi-track:  the procedural route used by the courts for claims valued over £25,000 and some smaller but more complex claims.

 

Order: a decision of the court, usually requiring a party or parties to take some action. Failure to comply with a court order can result in serious penalties.

 

Overriding objective: the basic statement of principle underlying the CPR which requires the court to deal with cases justly and at proportionate cost.

 

Part 36 Offer: a form of settlement offer governed by specific rules.

 

Particulars of claim: the document containing a detailed description of the claim. This is one of the documents needed to issue a claim.

 

Personal representatives: the person/people who administer the deceased person’s estate (this term covers both executors and administrators).

 

Privileged documents: documents, such as letters between a client and his lawyer, which should not be shown the court or disclosed to the other side.

 

Probate: the process by which a will is proved and accepted as the last true testament of the deceased, after which a grant of probate will be issued allowing the executor to deal with the estate.

 

Proceedings: another way of generally describing a legal claim or action which has been issued and is being dealt with by the court.

 

Promissory/Proprietary estoppel: a legal claim that arises when the deceased made a promise during their lifetime to benefit another on their death and that promise has been broken.  The claim can arise from a promise for a sum of money or non specific benefit (promissory estoppel) or for property or land (proprietary estoppel).

 

Service: formal delivery of a document to a party.

 

Settlor: the person who settles property in a trust.

 

Settlement/settling a claim: reaching a binding agreement to end a dispute, either to avoid the need for proceedings or to bring proceedings to an end before trial.

 

Statement of case: a term used to describe the formal documents in which each party sets out their case.

 

Statement of truth: a statement made by the party or his lawyer in a statement of case, witness statement and other documents confirming the truth of the contents of such documents.

 

Stay: a temporary halt on proceedings.

 

Summary judgment: an application to the court for judgment to be given to either party without a full trial on the grounds that the other party has no real prospect of success and that there is no other reason why the case or issue should be dealt with at trial.

 

Testator/Testatrix: a person who makes a Will.

 

Trial: the final hearing of a matter.

 

Trustee: a person who legally owns property for the benefit of the ‘beneficiaries’ under a trust or a will.

 

Trust: an arrangement in which a settlor transfers property to one or more trustees, who will hold it for the benefit of one or more persons who are entitled to it under the trust.

 

Undue influence: where a testator is coerced or pressured into changing or making a Will. In this situation it may be possible to challenge that Will on the ground of undue influence.

 

Will: a document by which a person (the testator) appoints executors to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies.

 

Without prejudice: applied to statements or discussions between the parties before or after commencement of proceedings which are made in the course of genuine negotiations to reach settlement of a disputed matter. Such communications, either spoken or written, will be privileged and should not be shown or repeated to the court. Where such communications are ‘without prejudice save as to costs’ then they may be shown to the court at the end of the matter when the question of costs is addressed

 

Witness statement: a written version of the oral evidence which a person is intending to give at trial.

 

For more information, please contact Philip Youdan at philip.youdan@cripps.co.uk or on 01732 224 013.