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Challenging Wills – The risks

08 July 2016 #Private Client


A recent high court case (Elliot v Simmonds and others [2016] EWHC 962 (Ch)) highlighted the risks associated with challenging the validity of a Will without reasonable grounds.  The claimant was unsuccessful and ordered to pay both sides’ costs.

In the case in question, the claimant entered a caveat at the probate registry so as to prevent the issue of a grant of probate.  They then issued proceedings to test the validity of the deceased’s Will.  The claimant insisted on the Will being proved in solemn form and invoked her right to cross examine the witnesses present at the time the Will was signed in accordance with rule 57.7(5)(b) of the Civil Procedure Rules.  This rule states that the court will not make an order for costs against the challenger unless they consider that there were no reasonable grounds for opposing the Will. 

The claimant was unable to provide any grounds for opposing the Will and the court therefore held that she should pay both her own costs and the costs of the other parties.  The order required her to pay these costs from the point where her advisors had sufficient information from which to form an opinion on whether there were reasonable grounds to challenge the Will.

It follows that although courts are likely to view the entering of a caveat to prevent the issue of a grant reasonable whilst disclosure is sought on the circumstances surrounding the signing of the Will, once such disclosure is provided, the claimant should carefully consider whether the caveat should be lifted to prevent a costs order being made against them.

This judgement is likely to be welcomed as a possible deterrent against nuisance claims. 

Clarkslegal, specialist Private Client lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Private Client matter please contact Clarkslegal's private client team by email at privateclient@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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