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Courts 'costs rule' sets precedent for family disputes over wills

Sep 29, 2018, 18:31 PM
family law, will challenges, probate, costs judgment, delay, Inheritance (provision for family and dependants) Act
The High Court has handed down a costs judgement for in excess of £65,000 in the case Elliott v Simmonds [2016] EWHC 962 (Ch), setting a precedent that the courts will make costs orders against claimants who pursue weak will challenges, act obstructively, cause delay and increase costs without incurring costs themselves.
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The High Court has handed down a costs judgement for in excess of £65,000 in the case Elliott v Simmonds [2016] EWHC 962 (Ch), setting a precedent that the courts will make costs orders against claimants who pursue weak will challenges, act obstructively, cause delay and increase costs without incurring costs themselves.  

The case first hit the headlines December last year when Ms Simmons, illegitimate child of the self-made millionaire, Ken Jordon, claimed that his recent will was invalid for lack of capacity, knowledge and approval and undue influence. She also alleged a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the deceased’s estate, which he left entirely to his partner, Ms Elliott.

Ms Simmonds entered a caveat against the estate to prevent the executor from obtaining a grant of probate and raised various will challenges. However, she took no steps to bring an actual claim and after many years and significant costs the executor issued proceedings to prove the will in October 2014.

Instead of raising a will challenge as a defence, Ms Simmons relied on the passive defence set out in Part 57.7(5)(a) of the Civil Procedure Rule, that she would not raise a defence but forced the executor to prove the will and she would be entitled to cross-examine the attesting witness.

This forced the matter to trial in December 2015, where Deputy Judge Murray found nothing to suggest the recent will was not valid and accordingly proved the will in favour of Ms Elliott, who was represented by Gardner Leader law firm.

The Judge stated: '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.'

Ms Elliott was left with significant costs as a result of the defendant’s behaviour. 

There is usually a ‘no costs rule’ in these types of proceedings unless it can be shown that the defendant had ‘no reasonable grounds for opposing the will’. Gardner Leader argued that Ms Simmons had acted unreasonably in raising a  challenge against the will. They argued that she had all the relevant documents to consider whether or not she had serious grounds for challenging the will sometime before proceedings were issued in June 2013, yet, despite this, she failed to bring a will challenge even after being given additional time by the judge.

The Judge agreed with Ms Elliott and ordered costs against  Ms Simmons, to be assessed if not agreed with an initial payment of £65,000.

Tara McInnes, senior associate solicitor in the dispute resolution team at Gardner Leader who led the team on this case, said, 'Passive defence claims have historically meant that the defendant does not have to "challenge" the will, which forces the case to go to court and the inheritor to cover the legal bills or be forced into settling a weak claim. But this "costs rule" has sent a stark warning to the public and legal profession that if you wish to dispute a will, that you must be  prepared to prove that you have good reason for opposing it or be prepared to  pick up the legal costs.'

The full judgment is available to view here.

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