HOW TO CONTEST A WILL – LESSONS IN CHALLENGING A WILL (PART 2)
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss why contesting the legal validity of a Will is not an all or nothing issue
Why isn’t challenging the legal validity of a Will an all or nothing issue?
It is perfectly reasonable for one to believe that a Will is either valid or it is not. After all, if applicable, either it has been forged or it hasn’t, either it has been made when the testator had legal testamentary capacity or he when he hadn’t and he either knew and understood the contents of his Will or he didn’t. Moreover, as we discussed in our previous blog (Lessons in Challenging a Will (Part 1)
the Court will want to rule on the legal validity of a Will even when one party to the challenge against its legal validity (or in favour of it) doesn’t put in a defence to the claim.
Surely then contesting or disputing the legal validity of a Will is all or nothing?
It seems perfectly reasonable to believe that it is all or nothing and to an extent, given the points made above, one can clearly see why this might be so. However, a Will is a device which determines how an individual’s estate is to be devolved to his relatives, friends and/or others. It concerns money and money can be divided, won or lost. For the legal validity of a Will to be determined where there is a dispute over its legal validity, a Court must be asked to decide. Technically this is dealt with under “Civil Procedure Rule” 57:
Involving the Court means acceding to its rules, in particular in relation to costs. As is well known, the usual order in civil claims is that the loser pays the winners costs. Of course there are additional complexities regarding costs in cases involving Wills, largely because of the court’s overseeing rule in determining the legal validity of Wills, neatly summarised by Mr Justice Henderson in Kostic v Chaplin and others 2007 EWHC 2909 (Ch) ( https://www.bailii.org/ew/cases/EWHC/Ch/2007/2909.html ).
4. The costs of a contentious probate action, like those of any other civil claim, are within the discretion of the court, and CPR Parts 43 and 44 will apply. The general rule, enshrined in CPR 44.3(2)(a), is that the unsuccessful party will be ordered to pay the costs of the successful party, or in other words that costs follow the event. However, sub-paragraph (2)(b) provides that the court may make a different order, and it was common ground before me that in contentious probate claims there are two long-established exceptions to the general rule which have survived the introduction of the CPR and are still valid. Miss Montogomery did, however, reserve the right to argue in a higher court that the exceptions have now been replaced by the provisions of the CPR. For what it is worth, my own view is that the position is indeed now governed by the CPR, but the considerations of policy and fairness which underlie the two exceptions remain as valid today as they were before the introduction of the CPR, and they should therefore continue to guide the court in deciding whether it is appropriate to depart from the general rule and to make a “different order” pursuant to sub-paragraph (2)(b).
5. The two exceptions were stated as follows by Sir Gorell Barnes P in Spiers v English  P 122 at 123:
“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.”
However for your Solicitor this simply creates an additional layer of risk – that you might win, but not recover your own costs from your opponent.
Unravelling the costs and consequences of an all or nothing approach to disputing or contesting Wills
These are multifactorial but in short are likely to add up the following:
• It may cost you more than you actually recover
• You might lose
• It takes no account of risk
In short, if you can resolve the issue with your opponent you can buy certainty, resolve the risk and potentially save yourself a considerable sum of money not to mention your time and a considerable amount of stress.
Some more information on the consequences of taking your Will dispute or Will contest claim to trial
There is a risk of losing at any trial because of the unexpected or unanticipated. How? Your solicitor might not have covered every single possible scenario prior to the trial. Your witnesses might come up with something unexpected. The Judge might simply prefer the evidence of, for example, the solicitor who prepared the Will that you are contesting.
In cases of this nature an experienced solicitor or Barrister will rarely suggest the litigation risk is better than 35% – in other words you are likely to have at least a 35% chance of losing.
We have outlined above that you might not even be awarded your costs in cases of this nature! In addition, even if you win and the loser is told to pay your costs:
• He/she might not have the money to do so or may have hidden their money
• The court deploys a “taxation” process in relation to costs which a party has been ordered to pay and is likely to arbitrarily deduct between 30% and 40% from your solicitors bill, which you will have to pay (even though you have won)
• If your solicitor is working under a no win no fee arrangement and/or your Barrister and they have success fees associated with that arrangement (commonly a 100% mark-up), you will have to pay them (they cannot be recovered from your opponent)
• If you obtained ATE insurance and you won, then you will have to pay the premium
Failure to mediate
The court system is clogged. Moreover Judges understand the limits of their own decision-making (that they can be wrong!) and the huge risks to the parties who decide to use the court to the very limits of its powers (by taking matters all the way to trial). Accordingly, there is a duty now on the parties to a dispute to actively engage in ADR (commonly a mediation). For example the “Practice Direction – Pre Action Conduct and Protocols” ( https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct )
Settlement and ADR
- Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
- Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.
- Parties may negotiate to settle a dispute or may use a form of ADR including—
(a) mediation, a third party facilitating a resolution;
(b) arbitration, a third party deciding the dispute;
(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and
(d) Ombudsmen schemes. (Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at—
- If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
The consequences of failing to negotiate
In short, the court might not award you your costs even if you win and/or you will crystallise the costs and risks inherent in litigation of this nature.
If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.