The recent case of Elliott v Simmonds (2016) EWHC 962 (Ch) should give some comfort to charities and other beneficiaries who face incurring costs proving a will where there are no reasonable grounds for challenge.

In this case the Deceased had made a Will (‘the 2012 Will’) under which his entire estate was left to his partner, the Claimant. The Will superseded one made two years previously (‘the 2010 Will’) under which the First Defendant was a material beneficiary.

The First Defendant entered a caveat at the probate registry preventing the grant of probate for the 2012 Will. She questioned the 2012 Will on the grounds of capacity and lack of knowledge and approval. However despite making allegations in that regard, the First Defendant did not bring a formal will challenge. Eventually the Claimant took the view that to progress the administration of the estate she had no option but to issue proceedings to prove the 2012 Will.

In response to the proceedings, the First Defendant raised the passive defence pursuant to the Civil Procedure Rules, Rule 57.7(5). That rule provides that a defendant can give notice that they do not raise any positive case, but insist on the will being proved in solemn form. In that case the defendant can cross-examine the witnesses who attested the will. This meant that the First Defendant did not have to set out her objections regarding the validity of the will but instead could wait for the will to be proved at trial.

The matter therefore proceeded to trial - at which the 2012 Will was admitted to probate. The Claimant had therefore incurred significant costs to get to that stage as a result of the First Defendant's claims. The First Defendant sought to rely on Rule 57.7(5)(b) which provides that if a defendant gives a notice under CPR 57.7(5.a), "the court will not make an order for costs against him unless it considers that there was no reasonable grounds for opposing the will".

The Claimant argued that the First Defendant had acted unreasonably as she had all of the relevant documents to consider whether or not she has serious grounds for challenging the 2012 Will some time before proceedings were issued, but despite this, failed to bring a will challenge.

The judge agreed and concluded that "none of the individual arguments raises a reasonable ground on which to oppose the will." He went on to say " I have also considered and rejected the conclusion that somehow, taken together, they raise a reasonable ground". The First Defendant was therefore ordered to pay the Claimant's costs, with an interim payment of £65,000.00.

Whilst no charities were involved in this case, charity beneficiaries are often faced with disgruntled relatives who call into question the validity a Will where there are no reasonable grounds of challenge in the hope that the charity beneficiary will agree a compromise or make a nuisance payment. The "no costs rule" under CPR rule 57.7(5.b) has on occasion encouraged charities to compromise their position for fear of incurring significant irrecoverable costs proving a will. This case should give charities and other beneficiaries greater confidence in such cases. It is also a clear reminder to those looking to challenge a will that their challenge must have real substance if they want to avoid picking up the whole costs bill.