Courts cost rule sets precedents for family disputes over Wills

The High Court has handed down a costs judgement, setting a precedent that costs orders will be made by the court against claimants who pursue weak Will challenges, act obstructively, cause delay and increase costs without incurring costs themselves.

Kenneth Jordan died in 2012 leaving his entire estate to his mistress Ms Elliot. Ms Simmonds, the illegitimate child of the self-made millionaire, claimed that his 2012 Will was invalid for lack of capacity, knowledge and approval and undue influence. Ms Simmonds further alleged a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the deceased’s estate, which he left entirely to his partner, Ms Elliott.

Ms Simmonds entered a caution against the estate to prevent the executor from obtaining a grant of probate and raised various Will challenges. However, no steps to bring an actual claim was taken by Ms Simmonds and after many years and significant costs the executor issued proceedings to prove the Will in October 2014.

Instead of raising a Will challenge as a defence, Ms Simmonds relied on the ‘passive defence’ set out in Part 57.7(5)(a) of the Civil Procedure Rule, that she would not raise a defence but forced the executor to prove the Will and the person who witnessed the signing of the Will be cross examined.

Deputy Judge Murray found nothing to suggest the recent Will was not valid and accordingly proved the will in favour of Ms Elliott when the matter went to trial in December 2015.

The Judge stated: ‘I have concluded that none of the individual arguments raises a reasonable ground on which to oppose the Will. I have also considered and rejected the conclusion that somehow, taken together, they raise a reasonable ground.’

There is usually a ‘no costs rule’ in these types of proceedings (i.e. each party will bear their own costs) unless it can be shown that the defendant had ‘no reasonable grounds for opposing the Will’. It was argued that Ms Simmonds had acted unreasonably in raising a challenge against the Will.

It was argued that Ms Simmonds had all the relevant documents to consider whether or not she had serious grounds for challenging the Will sometime before proceedings were issued in June 2013, yet, despite this, she failed to bring a Will challenge even after being given additional time by the judge.

The Judge agreed with Ms Elliott and ordered costs against Ms Simmonds, to be assessed, if not agreed, with an initial payment of £65,000.

This “costs rule” has sent a stark warning to the public and legal profession that if you wish to dispute a Will, that you must be prepared to prove that you have good reason for opposing it or be prepared to pick up the legal costs.

If you would like any more information in relation to this article then please feel free to contact me via email: simon.nicolaides@bowlinglaw.co.uk

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