Costs ruling in failed will row

Family Law|June 27th 2016

A woman who questioned the will of her late father in court has been ordered to pay more than £65,000 in costs.

The case concerned the illegitimate daughter of a wealthy businessman. She challenged a will leaving his fortune to his partner. Her claim was based on various allegations, including undue influence and the claim that her father had lacked capacity at the time the will was drawn up.

She also cited the Inheritance (Provision for Family and Dependents) Act 1975.

The daughter prevented the executor of the will from obtaining probate (establishing its legal validity) and made a number of challenges without ever actually formally challenging the will. Eventually, the executive pushed ahead with probate proceedings. In October 2014.

The daughter still did not launch a formal challenge, instead forcing the executor to ‘prove’ the will in court and insisting on cross-examination of the witnesses. But her efforts were unsuccessful. Deputy Judge Murray ruled there was no evidence to suggest the will had been invalid and declared probate.

He explained:

“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.”

The extended proceedings resulted in  a significant legal bill. In the Chancery Division of the High Court, Judge Murray ruled that the daughter must pay the partner’s legal costs, accepting the arguments of the latter’s legal team that failure to bring a formal challenge had been unreasonable.

Normally costs are not payable in such cases and the ruling has been  interpreted as setting a precedent for punitive damages when weak claims are pursued. Stowe Family Law Solicitor Jane Gray, a specialist in wills and probate, explained:

“Individuals thinking of challenging a Will should take early legal advice so as to weigh up the costs/ benefits of doing so and to ensure their grounds are strong enough.  Pursuing fruitless opposition to a Will without specialist advice can result in a punitive costs order which can have a devastating result. Each case rests on its own merits and should be carefully scrutinised  at each stage of proceedings. Costs remain subject to the wide discretion of the Court.”

Read Elliott v Simmonds here.

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  1. Andrew says:

    That’s because it is not there. I just wondered where Marilyn got her account of the facts from.

    It has long been my belief that challenges to a will – and Fam. Prov. claims from anyone except dependents – should be subject to the normal rule that the loser pays the winner’s costs – and that the Claimant should be required to insure the risk upfront. This case bears me out.

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