Q&As

If a party wishes to bring a counterclaim in a probate claim, where the force and validity of the Will are disputed, is an application required for this and is a fee payable? If a defendant to the counterclaim is not a party to the proceedings, is leave of the court required to bring the counterclaim and is an application required?

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Published on LexisPSL on 20/10/2016

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • If a party wishes to bring a counterclaim in a probate claim, where the force and validity of the Will are disputed, is an application required for this and is a fee payable? If a defendant to the counterclaim is not a party to the proceedings, is leave of the court required to bring the counterclaim and is an application required?
  • Background
  • Claim
  • Counterclaim
  • Permission
  • Applications
  • Counterclaim against claimant
  • Counterclaim against an additional party
  • Applying to the court for permission
  • Further reading

Background

The purpose of Part 20 is to enable counterclaims and other additional claims to be managed in the most convenient and effective manner (CPR 20).

Claim

The procedure for the counterclaim will differ depending on whether the claim is Part 7 or Part 8.

A probate claim must be commenced using the procedure in Part 7 (CPR 57.3(b)). Within Part 57, a ‘probate claim’ includes a claim for a decree pronouncing for or against the validity of an alleged will (CPR 57.1(2)(a)(iii)).

Counterclaim

A defendant who contends that he has any claim relating to the grant of probate of the Will of the deceased person must serve a counterclaim making that contention (CPR 57.8(1)).

A defendant can make a counterclaim against:

  1. the claimant (CPR 20.4), or

  2. the claimant and another person (CPR 20.4 and CPR 20.5)

A defendant may make a counterclaim against the claimant by filing particulars of the counterclaim:

  1. at the same time as filing his defence—no permission required from the court (CPR 20.4(2)(a))

  2. at any other

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