Should I change my divorce lawyer?

I am in the process of getting divorced, which I hoped would be amicable and swift. Unfortunately, my soon to be ex-husband is arguing over everything, causing my legal bill to rise very quickly. I am considering changing divorce lawyer as my current one seems happy with the toing and froing and spiralling costs. Is it possible for me to keep the costs sensible if my husband insists on being litigious?

Michael Rowlands, head of family law in the London office of JMW Solicitors, says unfortunately, this scenario is a common one. A slow divorce can be particularly damaging to your relationship and to children and the wider family, so a swift conclusion is of paramount importance.

It is always possible to change lawyer, but it is not a decision that should be taken lightly or hastily. A change might not be for the better and you can’t be sure you can find a replacement who will make a difference. If you want to try you should ask to interview a couple of candidates as most decent lawyers will offer a free meeting to break the ice. If possible, rely on personal recommendations and beware those who appear overzealous in nature or disposition.

You should insist on editorial involvement with everything sent by the new lawyer and obtain their commitment to avoid repeating any past errors. It is sensible to agree a fixed fee with your new lawyer, but equally ensure that they are incentivised to do a thorough job. The ideal choice will be an experienced lawyer who works efficiently with a junior team member. Discuss how this relationship works to avoid any surprises of double charging.

Brevity is an underrated virtue, certainly in divorce proceedings. Avoid lawyers who are unable to grasp the virtues of plain, precise and ideally short communication. Vague, lengthy, aggressive verbiage is likely to result in the same style of response.

Though you may feel as though you’re a fair way along in the process, you should be prepared to discover that you’ve made little progress. Though it might seem counterintuitive, getting a court process up and running straightaway can often be part of the solution, if only because it leads to a conclusion rather than a slow death by a thousand cuts.

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It is often the weaker economic party who should be making this decision earlier. To help achieve an expedient conclusion your lawyer should consider exerting pressure by applying to the court for the stronger uncooperative party to pay the legal fees up front. This is at least guaranteed to focus the mind on settlement.

If you are the stronger economic party, you and your lawyer should consider voluntarily providing every conceivable document to disclose your wealth comprehensively ahead of making a best and open offer, which should not be hidden from the court. This co-operation will prove hugely valuable for how you will be perceived, particularly if the opposing legal team ignores it.

Failing to adopt a sensible approach to family litigation can have significant cost consequences, not just in the reduction of the pot but the risk of a court making the uncooperative party pay the other’s costs.

Can I challenge my brother over my mother’s will?

The current state of the housing market and the momentous rise in mortgages means that, like many, I am relying on inheritance to get on the property ladder and buy my first property. My mother, who sadly has dementia and is near the latter stages of her life, has a will in place. My understanding was that the estate was to be passed down equally to me and my brother — money I’ve ringfenced already for buying a property. However, I have a fraught relationship with my brother, who is always in trouble financially. I found out recently he’s had secret conversations with my mother and the will has been changed, so the majority of the estate will pass to him. Can I take him to court to reverse the change?

Lucinda Brown, partner and head of BDB Pitmans’ will and trust disputes team, says the remedies you have in this scenario are not actually directly against your brother. If your mother lacks the capacity to draw up a new will, or if it can be established that your brother coerced your mother into drawing up a will that is more beneficial to him than you, then in England and Wales the will is invalid and, after your mother’s death, you could pursue a claim to overturn it.

If the claim were successful it would reinstate the previous will if there was one, or if not your mother’s estate would be administered on the basis of the intestacy rules (which if there are no other children or spouse, would mean that you and your sibling share the estate equally).

As the will does not take effect until your mother’s death, you cannot make any claim in respect of the will’s validity now, but there are steps you might take to prepare the ground for a claim.

For example, it would be better to obtain a doctor’s report as to whether your mother had capacity to execute the will while she is still alive so that the doctor can meet your mother, rather than try to form a view retrospectively and by reference only to medical records.

Obtaining evidence as to undue influence is more difficult as the nature of undue influence is that it tends to happen when no one is watching. If the will was homemade and was not drawn up by a solicitor, or your brother assisted in the drafting of the will, these facts may assist a claim in undue influence.

If you have positioned your life on your inheritance and your mother made express promises that you would receive half of her estate, you may be able to bring a claim in what is known as “proprietary estoppel” in England and Wales. Here, you would need to establish that promises were made, that you relied on the promises to your detriment and it would be inequitable for the court not to intervene to uphold the promises.

If you wanted to take action while your mother was still alive, you could consider applying to the Court of Protection for an order that a statutory will be put in place which properly reflects your mother’s wishes for her estate. To commence such an application, it would be necessary to establish (through a doctor’s report) that your mother lacks capacity to make a new will and you would need to give evidence as to what your mother’s longstanding wishes were for her estate and why the latest will does not reflect those wishes.

You would need to give notice to your brother of the application and your sibling would be given the opportunity to oppose the statutory will and put in their own representations.

The Official Solicitor would be appointed to represent your mother’s interests. Applications for statutory wills are complex and can be costly. It can take several months to get them ratified by the Court of Protection and the claim may not conclude before your mother’s death.

If the statutory will is approved by the court, your costs of bringing the application will be payable from your mother’s resources, subject to an assessment to determine whether the costs incurred are reasonable.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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