Wills claimants warned on costs

The High Court has fired a warning shot against those who pursue weak challenges to wills.

In Elliott v Simmonds [2016] EWHC 962 (Ch), the High Court made a costs order of more than £65,000 against Ruth Simmonds, the “secret” daughter from a previous relationship of self-made millionaire Ken Jordan.

Jordan left his entire estate to his partner, Bernice Elliott. Simmonds entered a caveat against the estate to prevent the executor from obtaining a grant of probate and raised various challenges but did not bring an actual claim. After several years and significant costs the executor issued proceedings to prove the will in October 2014. Simmonds relied on the passive defence set out in CPR 57.7(5)(a), forcing the executor to prove the will. She did not raise any positive case but insisted on the will being proved in solemn form and invoked her right to cross-examine witnesses.

However, Judge Murray concluded that Simmonds did not have a “reasonable ground” for opposing the will.

Although a “no costs rule” usually operates in these types of proceedings, Elliott’s lawyers argued that Simmonds had acted unreasonably. The judge agreed and ordered costs against Simmonds, starting at £65,000.

Tara McInnes, senior associate at Gardner Leader, who acted for Elliott, says: “Passive defence claims have historically meant that the defendant does not have to 'challenge' the will, which forces the case to go to court and the inheritor to cover the legal bills or be forced into settling a weak claim.

“But this 'costs rule' has sent a stark warning to the public and legal profession that if you wish to dispute a will, that you must be prepared to prove that you have good reason for opposing it or be prepared to pick up the legal costs.”