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Costs risks of challenging a Will without cause

The Court has ordered a daughter who challenged her father’s Will to pay an initial £65,000 in costs despite the fact that she took no active steps to dispute it.

In the case the daughter lodged a Caveat – blocking the issue of a Grant of Probate – and proceedings were issued where she required the Will to be proved. She did not actively challenge the Will but the Court found that the Will should be upheld and ordered that the daughter’s Caveat should be lifted.
Applying a rule that applies only to contentious probate cases Judge Edward Murray, sitting as a deputy judge of the Chancery Division, said the deceased’s Partner – who was the sole beneficiary of the Will – argued that the daughter had no reasonable ground to oppose the Will. This meant the normal costs rule should apply and she should pay both the claimant’s costs and those of the second defendant, an executor of the estate.
Delivering judgment in Elliott v Simmonds and another [2016] EWHC 962 (Ch), Judge Murray said it was sufficient to start with the “clear language” of CPR 57.7(5)(b), “bearing in mind the principles of policy and fairness underlying the costs regime and in the light of the court’s discretion as to costs set out in CPR 44.2”.
The judge said the justifications for challenging the Will included an argument that there was no “apparent reason” why the father should have wished to extinguish the legacy left to his daughter in a previous Will and that the solicitor who drafted the Will had failed to produce a detailed attendance note of his instructions.
However, Judge Murray said: “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”.
This case is a stark reminder to those who challenge a Will just for the mischief of the claim or who lodge Caveats without good evidence to support a dispute as to the validity or provisions of a Will. The Courts will consider all claims and where a Caveat has been lodged they must resolve the issue for the Executors, but claimants who do not take full account to the evidence may be on the receiving end of a costly judgement if their claim is unsupported.

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