Elliott v Simmonds [2016] EWHC 962 (Ch)

This case sets a precedent for courts to make costs orders against parties who pursue weak Will challenges, act obstructively, cause delay and increase costs without incurring costs themselves.

The First Defendant, Ms Simmonds, who was the illegitimate child of the self-made millionaire, Ken Jordan, claimed that his Will was invalid for lack of capacity, knowledge and approval and undue influence. She also alleged a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the deceased’s estate, which he left entirely to his partner, Ms Elliott.

Ms Simmonds entered a caveat against the estate to prevent the Executor from obtaining a grant of probate, and raised various Will challenges. However, she did not issue proceedings and, after many years and significant costs, the Executor issued proceedings to prove the Will in October 2014.

Rather than raise a Will challenge as a defence, Ms Simmonds relied on the passive defence set out in Part 57.7(5)(a) of the Civil Procedure Rule, that she would not raise a defence but forced the Executor to prove the Will.

The trial took place in December 2015, when Deputy Judge Murray found nothing to suggest the Will wasn’t valid and therefore proved the Will in Ms Elliott’s favour. The Judge held “that none of the individual arguments raises a reasonable ground on which to oppose the Will. I have also considered and rejected the conclusion that somehow, taken together, they raise a reasonable ground.”

There is usually a ‘no costs rule’ in these type of proceedings unless it can be shown that the Defendant had ‘no reasonable grounds for opposing the Will’. The Claimant argued that Ms Simmonds had acted unreasonably in raising a challenge against the Will, and that she had all the relevant documents to consider whether or not she had serious grounds for challenging the Will, but she did nothing and forced the matter to go to trial.

The Judge agreed and ordered costs against Ms Simmonds, to be assessed if not agreed, with an initial payment of £65,000.

The full judgment can be read here.

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