No longer a safe place to hide?
Emma-Louise Green is a solicitor specialising in Contentious Probate at The Wilkes Partnership LLP. In this article, she explores the recent case of Elliott v Simmonds  EWHC 962 (Ch) and the impact of the decision on individuals seeking to challenge or uphold the validity of a Will.
Kenneth Jordan died in August 2012. He had updated his Will in February of that year and had made his partner, Bernice Elliott the sole beneficiary of his £2 million estate. His daughter from a previous relationship, Ruth Simmonds, was not too happy about the situation and entered a caveat to prevent Bernice obtaining a Grant of Probate and administering the estate in accordance with the 2012 Will. She alleged that her father had lacked testamentary capacity to change his Will in 2012. Despite her allegations, she did not take any steps to progress her claim. As time went on Bernice had little option but to apply for a Grant of Probate in solemn form i.e. for the Court to confirm the validity of the Will and issue a Grant accordingly. This was not without risk to Bernice. The matter progressed all the way to Court and judgment in the case of Elliott v Simmonds  EWHC 962 (Ch) was handed down in April 2016.
Emma-Louise Green picks up the story. “Rule 57.7(5) of the Civil Procedure Rules has long caused unease to individuals trying to uphold the validity of a Will. This rule allows defendants to just insist that the Will is proven and cross examine the attesting witnesses but not raise a positive case as to why they believe it to be invalid. A costs order cannot be made against defendants relying on this rule unless the Court considers that there was no reasonable ground for opposing the Will. This can lead to a situation then where a Court agrees that a Will is valid but feels that it was reasonable for the defendants to insist that the Will be proven and so it is not appropriate for a costs order to be made against them. The people seeking to uphold the validity of the Will, whilst successful, may not recover their costs from the defendants. There was concern that some individuals were hiding behind this rule just to put maximum pressure and expense on the supporters of a Will. It was felt that even a half-hearted challenge could be sufficient to protect defendants from an adverse costs order.”
The Court now seems to have given some clearer guidance on this point in Elliott v Simmonds. Ruth had challenged the validity of the Will not by raising a positive case but by insisting that the Will be proven. She was unsuccessful and the Court found that the Will was valid. When the inevitable arguments on costs took place, she sought to rely on CPR 57.7 (5) that it was reasonable for her to do what she did. The Court did not agree.
Emma-Louise Green goes on to comment “This decision is an interesting one because on the face of it, there was some doubt about Kenneth’s capacity and so arguably Ruth was entitled to test some of the evidence and insist that the Will be proven. However, the Court felt that her entitlement to test the evidence did not entitle her to take the matter all the way to trial. Therefore, the Court ordered her to pay Bernice’s costs from the date on which she was in a position to reasonably assess her prospects of success. In this case, the Court held that this was when she received copies of the Witness Statement of the solicitor who prepared the Will, records from Kenneth’s GP and records from the nursing home. This was on 3 June 2013 and considering judgment was only given on 7 April 2016, the amount of costs that she now has to pay is likely to be significant indeed.”
This case should be looked at as a positive development by those people looking to uphold the validity of a Will but worried about the costs consequences of doing so. It now provides some clear guidance as to when it is reasonable for a defendant to rely on CPR 57.7(5). Conversely, it should be looked at as a cautionary tale by defendants. If they deal with the claim by relying on CPR 57.7(5), they must be able to justify their decision or risk an adverse costs order being made against them.
The Contentious Probate Team at The Wilkes Partnership regularly advises individuals on the strength of bringing a claim to challenge the validity of a Will or to obtain a Grant of Probate in solemn form. If you wish to discuss any aspects of these claims, please contact Mark Abrol, Mark Terrar or Emma-Louise Green on 0121 710 5832/5927/5925 respectively.