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14th May 2012

Litigate sensibly, or be punished

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It is a common misconception that costs in contentious probate claims will always be paid from the estate. In fact, the starting point in contentious probate claims is the same as for other types of litigation: the loser pays the winning party's costs.

Two recent cases have highlighted the costs dangers of adopting a "no holds barred" approach to claims of this type.

In Wharton v Bancroft [2011] EWHC 3250 (Ch) the deceased’s three daughters challenged the validity of a will made by their father in the final days of his life and just half an hour prior to his marriage to his partner of 32 years, to whom he left his entire estate. The daughters challenged the will on the basis of want of knowledge and approval and undue influence but were unsuccessful in their claim.

At the costs hearing the Judge awarded indemnity costs against the three daughters as a result of their unreasonable behaviour in pursuing the litigation. The Judge's view was that the daughters' choice to advance the case had not been based on a reasonable assessment of the facts but rather, they had attempted, albeit unsuccessfully, to build a case from any scraps of evidence available to them because of their passionate belief that the will must have been invalid.

The daughters and their solicitors had conducted the proceedings in an aggressive manner, making excessive enquiries into irrelevant matters which only served to increase the costs incurred. They had also consistently used the fact that their legal fees were funded by a Conditional Fee Agreement and After the Event Insurance as a tool to threaten the defendant in correspondence.

The 2012 case of Lilleyman v Lilleyman [2012] EWHC 1056 (Ch) was a claim brought by a widow under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate of her late husband. The Judge made his decision on costs based on a review of the parties' without prejudice negotiations before trial and the defendants' unreasonable and unrealistic stance throughout proceedings that the will had made reasonable provision for the widow. The defendants were disallowed 20%of their costs due to their conduct.

The Judge considered that it would be an injustice to allow either party full recovery of their costs in light of their failure to make sensible concessions during the negotiation process which could have reduced the scope of the trial and the cost of its preparation.

These cases provide a salutary reminder that the Court has a wide discretion to award costs as it sees fit and will punish a party in costs for unreasonable behaviour.

The Contentious Trust and Probate Team at Hewitsons can advise you as to how to conduct this type of litigation in a manner which preserves the possibility of maximum recovery of your costs.

For more information, please contact Lucinda Brown on or on 01223 532721