The risks of losing a contentious probate claim.
31st October 2016 by Rob Kelly
Beneficiaries who challenge the validity of a will, and lose, run the risk of being ordered by the court to pay the executors’ costs. This is what happened in Breslin (Executor and Beneficiary of the estate of Marjorie Beck, deceased) v Bromley and ors [2015] EWHC 3760 (Ch).
The claimant, Mr Breslin, was the executor and beneficiary of his aunt’s will. He had taken his aunt to a solicitor for a will to be prepared on her behalf but instead of executing her will in that solicitor’s office, she executed it elsewhere, in circumstances that some of the beneficiaries found dubious. Two of the beneficiaries made a challenge to the validity of the will and accused Mr Breslin of unduly influencing his aunt (although that claim was later abandoned). The beneficiaries’ challenge to the validity of the will was unsuccessful.
The court was asked to determine who should pay the costs. The beneficiaries who had challenged the will argued that they should not have to bear the costs because the litigation was Mr Breslin’s fault for not ensuring that his aunt properly executed her will.
The court made it clear that it did not consider Mr Breslin or Marjorie to be the cause of the litigation. The court was not minded to decline to award costs in Mr Breslin’s favour simply because the circumstances surrounding the execution of his aunt’s will may have warranted an investigation into the validity of the will.
The court held that the costs should be paid by one of the beneficiaries who had put forward a positive case that the will was not valid and ordered her to make an interim payment of £70,000 on account of the full costs.
Comment: Making a challenge to the validity of a will is a serious step which should not be taken without specialist legal advice.
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.
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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