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Challenging a Will – the passive defence and cost risks

30 Jan 2017

The recent case of Elliott v Simmonds [2016] EWHC 732 will no doubt come as a relief to Executors and probate practitioners in confirming that a Court will order costs sanctions against a party who attempts to use the passive defence to contest the validity of a Will without reasonable grounds for opposing the Will.

The Proceedings

The case involved Ms Elliott (the Claimant), who was a major beneficiary under her partner’s estate, and Ms Simmonds (the Defendant), who was a child of the deceased from a previous relationship. The deceased left the entirety of his £2 million estate to Ms Elliott under his last Will. That Will superseded an earlier Will, which provided for Ms Simmonds to receive a large share of the Estate.

Ms Simmonds consequently entered a caveat against the Estate, which prevented the Executors from obtaining a Grant of Probate.

Whilst Ms Simmonds went on to make several allegations against the Will, she did not take any further steps to challenge it. Ms Elliott was eventually forced to issue Court proceedings to prove the validity of the Will in order to allow the administration of the estate, which could not progress whilst the caveat remained in place.

In response to the proceedings, Ms Simmonds did not put in a formal defence but looked to rely upon the passive defence set out in CPR 57.7(5).

Passive Defence

The rule under CPR 57.7(5) says that ‘a defendant may give notice in his defence that he does not raise any positive case but insists on the Will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the Will’.

The rule also states that ‘if a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the Will’.

In considering the scope of the passive defence, the Court in Elliott v Simmonds allowed Ms Simmonds the opportunity to cross-examine the solicitor who attested the Will, in relation to the deceased’s mental capacity and alleged lack of knowledge and approval of the Will. The Court was not convinced that the cross-examination raised any real doubt as to the validity of the Will. In reaching its decision against Ms Simmonds, the Court also placed considerable weight on the evidence of the witness who attested the Will, who was an experienced solicitor and family member of the deceased.

The Court held that there were no reasonable grounds for opposing the Will. Nor was there sufficient justification for the time and expense incurred as a result of Ms Simmonds’ cross-examination of the witness to the Will.

No costs rule

The usual position under CPR 57.7(5) is that no costs order is made against the Defendant, provided that they had shown reasonable grounds for opposing the Will. The Court, in this case, found that Ms Simmonds had shown no reasonable grounds for opposing the Will and accordingly made an order against her to bear Ms Elliott’s costs in bringing the claim to prove the Will. As part of this, Ms Simmonds had to make an initial interim payment of £65,000 to Ms Elliott.

This ruling provides Executors and beneficiaries with some reassurance that the Courts will not tolerate unmeritorious challenges to a Will in which a party seeks to rely on the passive defence as protection from the costs risks of pursuing litigation.

If you would like to discuss any of the points raised in this article, please contact Lucy Gray, Partner in our Commercial Disputes Team

Call: 0191 232 8345

Email: Lucy.Gray@hay-kilner.co.uk