What Is The ACTAPS Code?

The Association of Contentious Trust and Probate Specialists (“ACTAPS”) was founded in September 1997 for lawyers specialising in trust and probate work.

You can find a specialist lawyer from their list of members. Members have to be substantially engaged in contentious trust and probate law and practice.

ACTAPS run an accreditation course over 2 years in collaboration with the University of Law for al barristers, solicitors and legal executives.

Pre-Action Protocols

A pre-action protocol will govern conduct of parties prior to and in an attempt to avoid court litigation.

There are specific protocols for specific types of cases (such as personal injury, debt, housing disrepair and possession, etc).

There is also a general Practice Direction – Pre-Action Conduct and Protocols where a specific one does not apply.

Paragraph 4 of this general protocol states that

‘in cases not covered by any protocol, the court will expect the parties to act reasonably in exchanging information and documents relevant to their claim and in trying to avoid the necessity for the start of proceedings’.

These can be found in the Civil Procedure Rules (“CPR”).

ACTAPS Code

ACTAPS have proposed for some time a pre-action protocol for contentious probate disputes. Whilst it has not been formally adopted in the CPR, it is used as the primary guidance for best practice by lawyers in this area.

The Code is approved by the Trust law Committee and ACTAPS members are encouraged to abide by the Code, as well as practitioners in this area.

The main types of disputes within the ambit of this Code can be expected to be:

• challenges to the validity of a will, for example on grounds of want of capacity or knowledge and approval, undue influence or forgery
• claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”)
• actions for the removal of an administrator or executor or trustee or the appointment of a judicial trustee
• actions for the rectification of a will or other document
• disputes as to the meanings of provisions in a will or a trust
• administration actions
• allegations of breach of trust.

The aims of the Code are

1. to encourage the resolution of disputes without hostile litigation; and
2. even where litigation may be necessary to ensure that it is simplified as far as possible by maximizing the scope for the exchange of relevant information before the litigation process has commenced

The Code provides guidance on

1. the Letter of Claim
2. the Letter of Response
3. Documents
4. Experts

Precedents documents are set out in the annexes

Contentious Probate Disputes

There continues to be a rise of these disputes, driven by increased value in the main asset of the estate (properties), awareness in the public and/or a sense of entitlement to inheritance, etc

Litigation however should be not be embarked on lightly, otherwise there becomes a real risk that the estate is depleted by each party’s legal costs leaving nothing to fight over

Litigation should be the last resort and parties should attempt to reach an amicable resolution through Alternative Dispute Resolution, with guidance from pre-action protocols such as the ACTAPS Code.

Pre-action conduct can be taken into account when deciding the issues of costs at the conclusion of a case and you can be penalised (even if you win) for failure to adhere to protocols.

If you are in need of sound legal advice at an early stage then sourcing a specialist lawyer through ACTAPS is a good starting point.

Chun Wong is a member of ACPTAPS and Brenel Menezes is a student member undertaking the accreditation course. To speak to our legal experts call 0330 822 3451 or request a callback.