Challenging a Will - Who Pays the Costs?

July 08, 2016

Dispute Resolution, Wills and Probate

Challenging a Will - Who Pays the Costs?

There are legions of disappointed relatives when it comes to the possibility of inheritance.  Should the expected legacy not materialise, suspicions that the deceased was “got at” or lacked mental capacity will often rise to the surface.

The normal step, if a Will is to be challenged, is to enter a “caveat” at the Probate Registry and then, after investigation, to launch proceedings to test the Will’s validity.  A caveat prevents the Will from being admitted to probate.

There can be an assumption that the legal costs of both the challenger and the other parties (who will include the executors) will be met out of the estate.  The assumption is backed up by court rules that provide that this should normally be the result where a person wishes the Will to be formally proved in solemn form.  This is not the rule, however, if the court finds that there were no reasonable grounds for challenging the Will.

In a recent case, Elliott v Simmonds and others [2016] EWHC 962 (Ch), the normal assumption was tested.  Here it was found that the claimant (the deceased’s daughter) had no reasonable grounds for her challenge; she was ordered to pay her own costs and those of the other parties as from a date when it should have been clear to her and her advisors that she stood no chance of success.

The lesson is that litigation over Wills is not a no cost option. Anyone who contemplates an action over a Will must make sure that their case is realistically appraised as soon as sufficient evidence has been obtained.  Releasing the caveat at an early stage may often prove the best strategy.

posted by Julian Freeland | July 08 2016