An interesting decision has recently arisen concerning costs in probate claims.
In most arenas of litigation, the loser pays. If the claim or defence fails, the losing party usually has to pick up the tab not only for their own legal costs, but also the other side’s.
This is often enough to make a party pause and carefully consider whether the sum or matter in question is worth the risk of losing at trial.
But probate claims which concern a challenge to the validity of a Will afford the challenger a peculiar costs protection, although in Elliott v Simmonds [2016] the defendant found out the hard way that costs protection isn’t always absolute.
Elliott v Simmonds
Ruth Simmonds challenged the validity of her late father, Kenneth Jordan. Kenneth had left his substantial estate worth over £2m to his partner, Bernice Elliot by his last Will in 2012. An earlier Will had left Ruth £100,000 but she received nothing in the last Will.
Ruth duly entered a caveat, which prevents Grant of Probate from being issued. This meant Bernice had to issue a claim against Ruth to prove the validity of the Will.
When Bernice issued her claim, Ruth may well have had in mind CPR57.7(5), a useful rule which only applies to probate claims and can provide considerable costs protection to challengers of a Will. The rule is worth setting out in full:
CPR57.7(5)
(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.
Sting in the tail
This essentially means a challenger to the Will can say ‘I raise no case one way or another but require the court to confirm the Will is valid and either way, I do not have to pay costs’. But the sting in the tail is at the end of paragraph (b):
“… unless [the court] considers there was no reasonable ground for opposing the will”.
Bernice won at trial, the 2012 Will was valid. But there was more trouble in store for Ruth. The Judge also found there were no reasonable grounds to challenge the Will. The fact Ruth could think of no reason why she should have been disinherited was not enough. Nor was the fact that no detailed attendance note was taken by the solicitor who prepared the 2012 Will.
Therefore, no reasonable ground had been made out so Ruth did not have the protection of CPR57.7(5). The Judge found that when it had become clear there were no grounds to challenge the Will (from June 2013), Ruth would be ordered to pay Bernice’s costs from that point onwards. That meant she had to pay Bernice’s costs of £65,000.
This was an expensive exercise and an important reminder to parties to probate litigation to keep the matter under review, especially if the benefit of CPR57.7(5) will be called upon. It will be necessary to consider carefully and review whether there are sufficient grounds to challenge the Will or otherwise risk a substantial adverse costs order.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.