When it comes to determining the issue of costs in contested matters, the general litigation rule is that the costs follow the event. In other words, it is expected for the loser to pay the winner’s costs. This is however not always the case in contested probate matters.
The Civil Procedure Rules (CPR) Rule Part 57.7(5) allows some family members or beneficiaries to insist on the Will being “proved”, without them setting out the reason for them refusing to consent to the Will being adopted. In other words, contrary to the usual practice in litigation, a defendant need do nothing, merely serves notice that although they are raising no positive case, they still require the claimant to prove the Will (a so-called “passive defence”). This puts no obligations on the defendant. The job of adducing evidence to convince the court that the Will ought to be pronounced is left to the claimant (normally the executor of the Will).
To add insult to the injury, CPR Rule 57.7(5) (b) provides that the court will not make a cost order against the defendant “unless it considers that there was no reasonable ground for opposing the Will.” One can, therefore, say that not only does the claimant do all the work, but they must do so at their own expense. The claimant proceeds expecting success, but extremely frustrated that the estate must waste tens of thousands of pounds incurred in legal fees.
The costs rule, can be used tactically, by those familiar with it, to force opponents into paying off weak challenges to the Will. Such use of the CPR has many critics and quite rightly so. However, does the tactical use of CPR always pay off? Not necessarily!
In the case of Elliott v Simmonds  EWHC 732 (Ch) and  EWHC 962 (Ch) the defendant, Ms Simmonds, did precisely what CPR 57.7(5) allowed her to do. Ms Simmonds was an illegitimate daughter of Kenneth Jordan, a self-made millionaire. Mr Jordan, having been admitted to a nursing home in which he later died, made a Will leaving his entire estate to Ms Elliot. Upon his death, Ms Simmonds registered a caveat preventing a grant to the estate of her father being sealed. She made various allegations against the Will but took no steps to produce evidence in support of any of those, let alone issue claims. This left the executor of Mr Jordan’s Will with no choice, but to issue proceedings to prove the Will.
Ms Simmonds did not enter a defence raising the allegations as to the Will’s invalidity she previously insinuated. Instead, she entered the “passive defence”, merely insisting the Will be proved. By doing so she left herself the opportunity to cross-examine the witnesses who attested the Will, at trial. The case then proceeded through usual procedural steps of disclosure, witness statements and then trial.
Mr Jordan’s medical records, care home notes and copies of various solicitors’ files (including the file of the solicitors who prepared the Will) were obtained. At trial, the judge found nothing suggesting that Mr Jordan lacked capacity or knowledge and understanding of the Will. The court ordered accordingly that the Will be pronounced in solemn form and Ms Simmonds caveat is removed.
Setting a precedent, and totally unexpectedly so for Ms Simmonds, the court ordered also that Ms Simmonds pays the claimant’s costs of the matter, such costs to be assessed if not agreed. Pending the assessment process, Ms Simmonds was ordered to pay a sum of £65,000 on account of such costs.
The court made the costs order finding that Ms Simmonds acted unreasonably as she had in her possession all the evidence adduced by the claimant prior to the issue of the proceedings and still chose not to withdraw the caveat.
What lesson do we learn from this judgment? It pays for executors to be cooperative, even towards those who are contesting the Will. When executors find themselves in a situation that they should issue claim to prove a Will, they should disclose supporting evidence as soon as possible. They should also warn defendants on costs before issuing. Then, even if the defendant enters a passive defence, assuming the evidence supporting the Will is strong, the executors look to get an order that their costs are paid.