Buried alive

'People made it sound so easy to challenge a will.  I don't understand why the charities fought it so hard.' 

This quote from a 2025 litigant-in-person underlines some of the difficulties charities can encounter: disgruntled people who cannot understand why their parent, grandparent of sibling chose to benefit charities rather than family, and assume that it is easily 'fixed' by challenging the will.  Many legacy officers will have spent time fielding emails and calls like these and often that's where it ends.  But where a family member does take matters further, and doesn't seek the help of solicitors, it is worth being aware from the beginning that the claim may not play out as expected.

What is a litigant-in-person ('LiP')?

Litigants in England and Wales can represent themselves.  They are not obliged to be represented by a lawyer at any stage of proceedings, and may engage with solicitors and the Court directly. 

Legacy officers will often be the first point of contact when the claim arises, but once a charity instructs solicitors, the LiP is supposed to go via the solicitors rather than write or speak directly to you.

There are many reasons why LiPs do not instruct lawyers.  The most obvious is cost, though sometimes (especially when solicitors were involved at the outset only to be disinstructed) one gets the impression that the LiP could also be pressing on alone because the solicitors may have told the LiP some 'home truths' about the case which they were not ready to hear.

A litigant who has limited resources but a strong claim may well find solicitors to represent them on a 'no win no fee' basis.  

What does the court expect from a litigant-in-person?

Litigants-in-person are not exempt from following Court rules.  In the 2018 case of Barton v Wright Hassall, the Supreme Court made clear that:

'In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court… The rules do not in any relevant respect distinguish between represented and unrepresented parties… Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.'

In 2023, HHJ Paul Matthews expanded on this principle in Mainline Pipeline Ltd v Phillips:

'…litigants in person, in choosing to self-represent, cannot excuse themselves from compliance by saying that they do not know the rules. It is their responsibility, in choosing to take part personally in formal legal proceedings, rather than by way of professional legal representation, to make themselves aware of the relevant procedural rules, and to follow them. Apart from the many textbooks and handbooks on civil procedure which are published and usually available for consultation in libraries, the relevant rules themselves are available, without charge, via the internet from the Ministry of Justice website. There are many other websites, too, some providing the full texts of legislation and of caselaw precedents, and others proffering free legal advice. In addition, there are Citizen's Advice Bureaux and law centres which offer free legal advice.'

(…)

'Litigants in person need to understand that, other than in trivial respects, the court is not going simply to ignore their failure to follow the appropriate procedures, or (worse) to treat them as though they had in fact complied. That is not fair on those who do comply.'

In reality, the Court does make allowances for LiPs in some respects, such as dealing with case management issues and conducting hearings.  

What does the Court expect from solicitors facing a litigant-in-person?

The Civil Procedure Rules provide that a party who is represented should take on some of the practical/logistical burden if their opponent is acting in person.  For example, whilst usually the Claimant is responsible for preparing hearing bundles, the Rules state that if the Claimant is unrepresented and the Defendant is, the Defendant's solicitors will take on that responsibility.

Solicitors cannot advise LiPs, but they should communicate clearly about their own clients' position and what is expected of the LiP in practical terms (and, of course, should not use legal language to to confuse or intimidate).  A judge will be most likely to hold LiPs to the required standard if the solicitors on the other side of the case have explained the law, the rules and their obligations to them as plainly as possible.  A judge is unlikely to be impressed if solicitors try to hold procedural points against LiPs without having given them a reasonable opportunity to understand and comply.

What are the potential challenges? 

(i) Costs considerations

Engaging with a LiP can be more time and therefore cost-intensive than with a represented party: one has to explain legal concepts and practical considerations which a solicitor would not need spelled out.  As HHJ Paul Matthews pointed out in Mainline Pipeline Ltd, the way LiPs conduct litigation can also increase cost:

'A failure to follow the rules is not without consequences. It imposes extra costs on other litigants… and makes litigation slower and more complicated, and thus more expensive for everyone. More court- and judge-time is needed to deal simply with putting things right, rather than advancing the resolution process. This generally not only makes things worse for the litigants themselves, but it also lengthens the time that must be spent by other litigants in waiting their turn to be heard.'

'Thus, the failures by the defendants to follow the rules will have made matters more complicated, slower and expensive. The other party (here, the claimant) will probably have incurred more costs than it need have done.'

Even where a LiP has a weak claim which a charity feels confident of defeating, probate claims in particular are evidence-based, and although evidence to rebut a weak claim may well be readily available, gathering it still takes time and cost.  

When facing a claim by a LiP, it is therefore important to be prepared for the possibility that the litigation itself will be more time-consuming than expected in the early stages, even if you ultimately expect to defend your legacy at the end.

Some LiPs choose not to engage solicitors but still have a property or other assets of their own against which, if they lose at court, their opponents (eg charities) could enforce an adverse costs award.  For these individuals, the prospect of having to pay the charities' costs may be an important negotiation point.  A different approach to negotiation will be needed for those LiPs who genuinely cannot afford to pay for representation and would be unable to pay a costs award if one was made.  

(ii) Lack of understanding of the claim

Understandably, litigants-in-person lack specialist knowledge and often do not appreciate where the merits truly lie.  Without a solicitor to explain the legal realities, LiPs can become blinkered by their own convictions about what the deceased 'must have done', or 'would never have done', and as a result pursue their claim long after a solicitor would have advised them to settle.  Again, this can increase costs.

This picture is evolving as LiPs make increasing use of AI.  Chatbots are now sophisticated enough that they may well enable a LiP to write sophisticated-sounding correspondence and make fewer obvious errors about the law.  Feedback and assistance from a chatbot may give the LiP misplaced confidence about the strength of their claim.  'Sycophancy' is a known problem with many chatbots where the AI model is trained partly by human feedback, and when the model's response matches what the user wants to hear, the user may well validate the response even if it is incorrect; meaning that the model learns to encourage and agree with the user even if that means producing incorrect content or analysis.  Where litigants are clearly using AI, we find it is often worth spending time unpicking even minor errors in what is said, not just to correct the position but ultimately to undermine the litigant's confidence in the chatbot's output.

Where charities are concerned, we often find that we need to spend time 'educating' a LiP about trustees' duties when it comes to claims and litigation.  Too often there seems to be an assumption that charities are easy targets and will offer money quickly to make a claim go away.  It is important to make clear at an early stage that charities will defend the funds benefactors have left them, and whilst this can include agreeing commercial settlements, this must be based upon merits and risk assessment and not simply nuisance value.   

Strategies

Every LiP is different, and it is important to think carefully about the individual and how they might best be motivated to drop their claim.  Where is the claim really coming from?  Do they want money, or do they want their 'day in court'?  

In some cases, where a LiP asserts vaguely that 'something is wrong' – thereby spooking the executors – but does not take any action or explain what exactly their claim might be, you may take a view that no claim will in fact materialise, and be able to get things moving by persuading the executors to distribute the estate on the strength of an indemnity from you.  

The quote at the top of these notes is based on a real LiP from a 2025 case which settled on a 'drop hands' basis (that is, the charities paid her nothing, but agreed not to pursue her for their own incurred costs).  This LiP seemed to be making the claim because she could not understand what her brother had done and therefore felt that something must be 'wrong'.  We took a gentle (but firm) approach, which included sending a trainee solicitor to sit down with her at Withers' offices to hear what she had to say, as we felt it was important that she felt listened to.  Having explained her concerns about her brother's decisions, she conceded that it was financially not worth fighting the will, and dropped the proceedings.

For more bullish LiPs, you may need to take the proceedings further and get a judge involved.  Probate claims are unlikely to be suitable for summary judgment (that is, inviting a judge to dismiss the claim 'on the papers' as being totally without merit) because witness evidence is often key and a judge will be reluctant to take such a drastic step without having heard witnesses be cross-examined.

However, one option which has succeeded with a number of LiPs is 'Early Neutral Evaluation'.  This is a court-assisted process where the parties present their cases to a judge who then gives an indication (which is formal but non-binding) of how they see the merits and how they would decide the claim if they were hearing it at trial.  This can be an important 'reality check' for LiPs who have weak claims.  Often they will have continued their claim in the belief that of course the solicitors on the other side are telling them that their claim is weak, but the judge at trial will see the truth.  Hearing an independent judge tell them that they are likely to lose can be what finally convinces them to see the danger and settle.

Top tips

• LiPs should not be bullied, but nor do you have to give them infinite time to express their claim.  If you give them opportunities to explain themselves and nothing happens, consider whether it might be appropriate to offer the executors an indemnity to encourage them to distribute, or make your own claim to propound the Will.
• Take the long view.  Litigating with a LiP can mean higher cost upfront, but it is worth laying the groundwork and putting in a strong defence in order to put yourselves in the best position to settle.
• Look at settlement in the round.  It's not always about the money, and even when it is, LiPs may not have the same view of the merits as you do (and may not be persuadable except by hearing from a judge).  Your levers will be different in every case.
  

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