Conferences in Probate. Send for the barrister!

Probate (and for the purposes of this article I include Inheritance Act claims, which some would argue are family cases rather than probate) are one of the areas of law where there can be a plethora of parties represented by the one legal adviser. To those of us working in this area of law, it is not unknown for the header of a court order or document to run to two pages of A4, because the parties’ names do not fit onto one sheet.

Any lawyer knows that one of the most difficult aspects of the job is managing the expectations of a client. Their idea of ‘justice’ may be far removed from the realities of what can be achieved in reality.

In starting a case with multiple parties, it is very important that each party is spoken to. It may be that the parties genuinely do agree with one another in every regard, although this is rare. If they do not, advisers must be alive to the possibility of a conflict of interest between the parties- far better to realise at the outset that there may be a difficulty than find out a year down the line, the day before a hearing.

Conferences with counsel can be of assistance in this regard. As the ‘outside’ lawyer, we can delve deeply into any possible difficulties without the worry of damaging your client/ lawyer relationship. A barrister does not have the day to day running of the case. If I do meet the parties in conference and discuss some unpleasant realities with them, the client (and those instructing me if necessary!) can decide not to use me going forward. One does however always hope that frank advice will be well received!

This is not to say that those who instruct counsel NEED a barrister to point out a weakness or problem to a client. All of the probate solicitors I deal with are knowledgeable and hard-working, and more than able to give an accurate and forceful opinion of the prospects of the case.

By instructing a barrister to attend a conference however, both lawyers are in a position to test the case, explore strengths and weaknesses, and really drill down into future potential difficulties.

Many the conference I have attended where multiple clients have different versions of how they feel a case should move forward. Having met their solicitor several times over the past months, and perhaps feeling they know her well, they believe that they can express any opinion, however unrealistic, and this should be acted upon to the letter.

An external consultant (i.e. a barrister) serves as a buffer. One case in particular comes to mind, where the initial opinion of all was that the parties had such differences of opinion that each would need separate representation. On further exploration, and with some robust advice from a ‘stranger’ pointing out the difficulties in the case, everyone agreed on a way forward. Not only did the same solicitor act for all parties throughout the case, but the end result was very favourable. Although my advice was very much in line with the advice already given by my instructing solicitor, the parties seemed to take the view that, if BOTH lawyers are saying the same thing, it must be right.

If a Becket Chambers barrister can assist in conference, please do not hesitate to contact clerks@becket-chambers.co.uk