Costs risk of challenging a will

July 21, 2016

The recent case of Elliott .v. Simmonds, before the High Court in England (2016 EWHC 962(Ch)) has highlighted the risks of claimants pursuing weak will challenges and acting obstructively in proceedings before the Court.

This case has been widely publicised, the multi millionaire Kenneth Jordan (“the Deceased”), left his entire Estate to his partner, disinheriting his daughter. Interestingly, his daughter had been provided for in a previous Will, however the Deceased amended the Will a mere matter of months before he died in 2012.  In such circumstances it would have been advisable for the Testator to have left detailed reasons why they sought to disinherit a family member.

Due to the significant change in the entitlement under his Will, the Courts sought to confirm the testamentary capacity of the Deceased in respect of the 2012 Will. They looked to the test for testamentary capacity as set out in the Banks .v. Goodfellow case, where a Testator is required to:

  1. Understand the nature of the Will and its effect;
  2. Understand and have some idea of the extent of the property of which they are disposing under the Will;
  3. Be aware of the persons for whom the Testator would usually be expected to provide for, and as to which he/she ought to give effect to i.e. any claims for existing family members, who would expect to be left something in the Will;
  4. To be free from any delusion of the mind that would cause him reason not to benefit those people.

The Court held that the Deceased had testamentary capacity, and also highlighted to solicitors the key importance of taking detailed attendance notes upon signature of a Will. In such circumstances where there is an aged Testator, it is good practice for the solicitor to obtain a note from a medical practitioner confirming that the Testator has testamentary capacity (the ‘golden rule’).

Interestingly, the daughter of the Deceased, Miss Simmonds, did not issue any proceedings under the Inheritance (Provision for Family Dependants) Act 1975, to make a claim on the Estate for reasonable financial provision. The entitlement for adult children has recently been explored by the Court of Appeal in Ilott  .v. Mitson ((2015)  EWCA Civ 797).  Please note that in Northern Ireland, similar provisions of this legislation are contained within the Inheritance (Provision for Family and Dependants) (NI) Order 1979.  She did however enter a caveat at the appropriate registry, which prevented the Grant of Probate being issued, this was removed upon the completion of the proceedings. To administer the Estate the Executors had no alternative but to bring this matter before the Court, they issued an application seeking that the 2012 Will was proved in solemn form, where the Court confirms there is a valid Will.  The effect of such ensures that the Will cannot later be set aside unless evidence of fraud or a later Will is found.  In such an application various extrinsic evidence can also be put to the Court, such as calling witnesses involved in preparing the Will, lay witnesses or medical evidence.

This was Miss Simmonds’ downfall, she invoked her right to cross examine the solicitor who drafted the Will, despite not raising a substantial case in respect of challenging the validity of the Will, thus incurring substantial costs for the parties involved. Often Wills are challenged on the basis of testamentary capacity and a lack of knowledge and approval, as already outlined, or less frequently on the allegations of undue influence or fraud.  There is a very high threshold to overcome in such claims, this is decided on the balance of probabilities.  The daughter merely sought to argue that there was no reason why the Deceased should have extinguished her legacy under the original Will and that he was not of the right mind to do so when he did so.

The Court found that Miss Simmonds had no reasonable ground for opposing the Will, and made an adverse costs award against her. Significantly, the Court ordered costs against the daughter from the point at which she had sufficient material available to her and her solicitors to form this view, and when she continued to progress her claim despite being aware of this material.

This case should act as a cautious note to claimants who wish to contest a Will, it is very clear that there needs to be substantial grounds to do so. Potential claimants should be aware from the outset of the potential costs risks in bringing proceedings before the Court. Legal advice should be sought before commencing proceedings.

Please note that the content of this Article is for information purposes only and further advice should be sought from a professional legal adviser before any action is taken.