Will I have to pay costs if I don’t challenge a will
A lesson learned for those who force an estate to take action to prove a will, but have no reasonable grounds to challenge the will and take no steps to do so.
In most cases where someone wants to have a will ‘proved’ but does not bring an active case to challenge the validity of the will themselves, a ‘no costs’ rule applies. An exception is when the court decides that there were no reasonable grounds for challenging the will. In the case of Elliot v Simmonds, a woman who raised concerns about a will but then effectively ‘did nothing’, forcing legal action to prove the will, was ordered to pay £65,000 in costs.
The will concerned, made in 2012, named the deceased’s partner, E, as the beneficiary. This overrode an earlier will in which an illegitimate daughter of the deceased, ‘S’, had been left a substantial legacy. S was upset by this turn of events and entered a caveat against the will, and then raised various objections and challenges to the will in correspondence. She did not actually bring a claim. Eventually, the executor brought legal proceedings to confirm the validity of the will. S continued to maintain that she would bring a challenge to the will – but this never actually materialised. The will was proved and the caveat lifted, so probate could go ahead, but E had incurred significant costs as the result of S’s behaviour, and brought a claim for costs against S.
Although cases which are not actively defended in these circumstances do not normally lead to costs awards, the judge agreed with E that S ‘had no reasonable grounds’ for opposing the will under the Civil Procedure Rules. The judge concluded that
- the deceased did not have to leave an explanation for the change of heart in the 2012 will – it had no bearing on his capacity to make a will
- although there were some regrettable gaps relating to the actions of the solicitor who made the will, he was the deceased’s brother in law and a good friend, and was in a good position to know the deceased’s state of mind
- S had all the documents in her possession in June 2013 which would have allowed her to make a decision that she did not have reasonable grounds to bring her case, but she did nothing and allowed proceedings to continue and costs to rise.
No reasonable grounds
S argued that she did have reasonable grounds to contest the will. She said that there was no reason for her father to have made a new will which effectively disinherited her. She supported this argument with an assertion that the solicitor involved in making the will had not kept detailed attendance notes, nor had he followed ‘the Golden Rule’ of seeking medical evidence about the deceased’s mental capacity. S mentioned that there had been an occasion where the deceased had forgotten that he had made an earlier will, and said this should have alerted the solicitor.
The judge did not agree with any of these arguments. Ultimately, he felt that there was no basis for any challenge to the deceased’s will, and S should have known this in June 2013, 18 months before the legal action to prove the will was commenced.
Feeling aggrieved is not enough
This case highlights the importance of properly assessing whether you have real grounds to challenge a will. Simply feeling aggrieved that you have been left out of a will, even if you had previously been anticipating an inheritance, is not enough to bring a claim. There need to be reasonable grounds that the will is invalid. It also highlights the willingness of the courts to order costs if they feel that a party has acted obstructively.
Legal action to challenge a will can be costly in any circumstances. To pursue a will dispute in this way when you have no grounds to do so can result in a heavy legal bill, so taking legal advice about the strength of your claim is a sensible step to take.