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The risks of losing a contentious probate claim.

31st October 2016 by Rob Kelly

Categories: What's New?

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 — Dispute Resolution

Direct dial: 01202 755217


  • “A first choice for truly contentious Litigation in Automotive and Asset Finance and Leasing. His pure skill in tricky work wins through time and again and adds real value compared with the so called 'top tier' litigators. Truly capable, amenable and commercially minded business partners, the 'master chessmen' of their specialty.”

    Paul Maxted, previously the In house Legal Adviser and Company Secretary nearly 20 years, all Financial Services related companies in UK for Daimler, Mercedes-Benz

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

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  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall, CEO - Diamond Sporting Group

Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

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.

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