Proceed with caution when challenging a will
18th September 2017 by Rob Kelly
Kenneth Jordan died in August 2012. He had updated his Will in February 2012 and made his partner, Bernice Elliot, the sole beneficiary of his £2m estate.
His daughter from a previous relationship, Ruth Simmonds, who had stood to benefit under a previous will, entered a caveat to prevent the issue of a grant of probate, so that the estate could not be administered, alleging her father was “confused” and not of sound mind when he signed the will.
She did not make a claim against the estate but she insisted that the will be strictly proved, and that the witnesses to the execution of the will be cross-examined.
The cross-examination raised no doubt or suspicion as to the validity of the will and the court found that Ms Simmonds had no reasonable grounds for challenging the will and there was little to be gained from challenging the witness. The court ordered the defendant to pay the costs even despite the general rule that there be no order as to costs under Civil Procedure Rules 57.7(5)(b). It is believed that this is the first modern reported example of such an order.
Comment: The stark lesson for those wishing to contest a will in this way is that their claim must be reasonable; entering a caveat simply to delay or frustrate the issue of a grant of probate risks severe costs sanctions being imposed by the courts.
If you would like further information please contact Rob Kelly.
This article provides information and comments on legal issues and developments of interest. The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such. Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.
Questions relating to this article should be addressed directly to the author.
Rob Kelly
Senior Associate Solicitor — Dispute Resolution
Direct dial: 01202 377871
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Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.
Contentious wills, probate and trusts
More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years. He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.
Rob’s practice embraces:
- Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
- Disappointed beneficiary claims
- Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
- Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Proprietary estoppel claims
- Disputes about the proper construction, and rectification, of wills
- Caveats
- Professional liability claims arising from the preparation of wills and trusts and the administration of estates
He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.
Property disputes
The other side of Rob’s practice is contentious property work. This embraces:
- Residential and commercial landlord and tenant disputes
- Disrepairs
- Repairing covenants
- Possession claims
- Lease termination and lease forfeiture
- Dilapidations
- Service charge disputes
- Interpretation and enforcement of leasehold covenants
Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.
Rob is a Solicitor. He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006 and is a member of the Civil Mediation Council.
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