The case of Elliot v Simmonds and others  EWHC 962 (Ch) concerned a daughter, Ruth Simmonds ('Ms Simmonds'), who entered a caveat to prevent the issue of a grant of probate in her late father's estate and issued proceedings to challenge the validity of his last Will.
Her father ('the Deceased') died in August 2012 leaving his entire estate to his partner by way of a Will dated 1 February 2012 ('the 2012 Will'). Prior to this, Ms Simmonds had been due to receive a legacy of £100,000 under a Will made by the Deceased in December 2010 ('the 2010 Will').
Under the Civil Procedure Rules ('CPR'), an individual challenging a Will can decline to submit a positive case and can instead insist on the Will being proved in solemn form. The CPR provides that in these circumstances the challenger will not be subject to an adverse order for costs unless it is considered that there are no reasonable grounds for opposing the will.
In challenging the 2012 Will, Ms Simmonds alleged that the Deceased could not have been of sound mind when he decided to withdraw her legacy as there was 'no apparent reason' why he would do so. Ms Simmonds also highlighted that the solicitor who had drafted the 2012 Will had failed to produce a detailed attendance note of his instructions.
In delivering his decision, Judge Murray stated that 'none of the individual arguments raise a reasonable ground on which to oppose the Will' and that he had 'considered and rejected the conclusion that somehow, taken together, they raise a reasonable ground”. The Court ruled that the 2012 Will be upheld and the caveat entered by Ms Simmonds cease to have effect.
Importantly, as the Court found that Ms Simmonds had no reasonable grounds for opposing the 2012 Will, it ordered costs against her from the point at which she had sufficient material to form this view. Ms Simmonds was ordered to pay an initial sum of £65,000 for costs.
There is little modern case law on the construction of the costs rule for probate cases under the CPR and therefore Elliot v Simmonds and others may well set a precedent for courts to make costs orders against claimants who act unreasonably or in a vexatious manner in pursuing weak challenges to Wills.
While it is not unreasonable to enter a caveat for initial evidence gathering to be carried out, a caveator should be prepared to remove it if it becomes clear that they have no grounds for continuing to challenge a Will.
With many recent developments in case law on the topic of Will challenges and their potential for success, we are seeing increasing enquiries in this respect.