Has It Become Less Risky to Contest a Will?
What is at risk if you contest a Will?
What I am describing is a situation where the legal validity of a Will is challenged; the typical grounds being that the testator was subject to undue influence and/or because he or she didn’t or couldn’t have understood what was going on when the Will was made (typically because of the effects of an illness such as dementia).
If the legal validity of a Will is challenged in this way and there is no resolution or settlement before a trial (which frankly is unusual – falling into those cases comprising less than 1% of all those where such claims are being made) and the claim is lost at trial, then the real risk is that those who challenged the Will are likely to be found liable to pay the winners costs. This is because in our civil court system, the winner is paid his or her costs by the loser.
In claims of this nature, such costs can exceed £50,000!!
Whilst under a no win no fee arrangement (and sometimes, albeit rarely via other insurances/litigation funding agreements) it is possible to secure insurance protection against the risk of losing so that the insurer pays the winners costs, it might not pay all of the claimed costs and in any event, the premiums can be huge (albeit they are waived if the claim is lost). Nevertheless, ironically the size of the premiums (which can exceed £20,000) can be an obstacle to settlement, if this insurance is taken out too early.
Is it always the case that the loser pays in Will dispute claims?
No. Unusually the Court has an inquisitorial role in determining the legal validity of a Will. This means that it might consider a claim to have been correctly brought before it where the facts so determined. Further, it might also make a finding from those facts that the actions of the testator himself or the residuary beneficiaries created a muddle which led to the litigation.
In Spiers v English 1907, these were the findings of Sir Gorrell Barness P (https://swarb.co.uk/spiers-v-english-1907/https://swarb.co.uk/spiers-v-english-1907/). From these principles it was determined that:
1. Where opponents of the Will have been led reasonably to the belief there was good ground for contesting its validity, then if they lose at trial, they will not be ordered to pay the winners costs (but they will have to pay their own and the “winner” will be ordered to pay his or her own costs as well);
2. Where a muddle over the legal validity of the Will was created by the Testator (the person whose Will it is) himself or by the actions of the residuary beneficiaries, then
notwithstanding an unsuccessful claim, the costs of bringing it would be paid by the estate.
In the recent case of James v James (2018) EWHC 242 (ch) (https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2018/242.html&query=(raymond)+AND+(james)+AND+(v)+AND+(karen)+AND+(james)) the court, notwithstanding the claim was lost, found that the claim against the legal validity of the Will had been correctly brought and made no order as to costs. No doubt this was a blow for the Defendants.
What is the significance of the decision in James for Will contest cases
This is apparently old law. Spiers (cited above) was determined in 1907. However, what was different about James was that the approach by the court to this delicate issue, seems to have been swayed by the failure of the Solicitors involved in the commissioning of the Will to have the testator medically assessed. Again, it is old law (see Kenward v Adams 29 November 1975)( https://swarb.co.uk/kenward-v-adams-chd-29-nov-1975/) that a Solicitor preparing a Will for an aged or infirm testator, should have the Will witnessed or approved by a medical practitioner who has satisfied himself or herself of the testator’s capacity and understanding. This wasn’t done in James but the testator was clearly suffering from moderate dementia as a consequence of Alzheimer’s disease (both experts confirmed at trial that moderate dementia did not mean that the symptoms were not very serious).
Whilst this doesn’t mean that more cases will succeed where the “golden rule” laid down in Kenward v Adams (re medical testing in advance of the completion of a Will) isn’t followed, it could conceivably encourage the riskier cases to be advanced with greater force and encourage settlements in those cases on the grounds of “economics” (because if you know your costs of defending a claim may well prove irrecoverable, there is likely to be a saving if a modest offer is made and accepted very early on in the dispute).
If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat or visit us at www.willclaim.com.