Probate and Inheritance Claims Costs under CPR 57

It is common practice in law that the costs associated with a case are dealt with once the proceedings are completed. It is also common practice in civil litigation, that as a general rule of thumb the costs are paid for by the losing party.

In terms of wills, probate and inheritance, if a person disagrees with a Will or the handling of an estate, they are able to submit a claim form disputing the validity of the document.  Rules governing this procedure are detailed within CPR 57. This can be due to many reasons, for example questioning if the deceased was under duress at the time of authoring the Will, if it was forged or if a party simply feels overlooked in the Will. Typically, this comes from family members who have previously been dependent financially on the deceased and feel they are not appropriately provided for in the Will.

As with any litigation, the costs of such disputes can be substantial for all involved, however, the Civil Procedure Rules (CPR) 57 sets out guidance on the costs aspect of probate and inheritance claims.

Contesting Probate and The Inheritance Act 1975

If a person feels they have reason to contest a Will, then they are able to contest the grant of probate on grounds of the Inheritance Act. Claims under The Inheritance (Provision for Family and Dependents) Act 1975 are one of, if not the most common type of dispute surrounding contentious probate. This type of case is brought when relatives of the deceased feel like they are not fairly compensated in the Will, and can argue to prove that they were financially dependent on the testator when they were alive, and should therefore have been included in the distribution of the estate.

Obviously, this prolongs the whole probate process and is understandably difficult for the family members who have lost their loved one. This can be made even more difficult due to the ‘passive probate defence’ a Defendant can instigate due to the rules laid out in CPR 57. This leaves the Claimant party (that has applied for probate) with the work load of proving the validity of a Will, with typically no submissions or input from the person bringing the claim.

CPR 57.7(5)(b) and CPR 57.11(2)(a)

CPR 57.7(5)(b) states ‘If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.’

Essentially this rule enables family members, or other persons who wish to contest a Will, the right to do so without needing to present a valid reason or argument for the cause. Ultimately, this is known as the ‘passive probate defence’, as they only have to serve the notice that they are contesting the Will and that requires the Claimant to prove the validity of the Will without the Defendant having to present their own argument.

In terms of the associated costs, CPR 57.7(5)(b) ensures that the Court will not make a costs order against the Defendant (‘unless it considers that there was no reasonable ground for opposing the will’), meaning that the Claimant party must carry out all of the extra work in proving the validity of the Will, with no expected compensation at the end of the proceedings. Thus, this can waste thousands of pounds from the estate in question and prolong the proceedings for all involved.

CPR 57.11(2)(a) states, ‘At any stage of a probate claim the court, on the application of the claimant or of any defendant who has acknowledged service, may order that the claim be discontinued or dismissed on such terms as to costs or otherwise as it thinks just’.

This rule enables the Court to decide to terminate any claim it deems too costly for a Claimant to effectively argue without defence input. Claims may also be dismissed if a judge does not think there is a fair reason for contesting a Will, for example, if a Will does not have a large amount of estate for administration, leaving the Claimant with too high costs for fighting the claim with not enough estate to make it worth anyone’s while.

Elliot v Simmonds 2016

The case of Elliot v Simmonds is an important case in reference to CPR 57 (5) in particular. The guidance in the Civil Procedure Rules allowed a Ms Simmonds (an illegitimate daughter) to bring a claim questioning the validity of her biological father’s Will, who left his entire estate to a Ms Elliot.

Ms Simmonds made her claim alongside several allegations against the validity of the Will, but provided no evidence in support of her accusations. This meant that the Executor of the Will in question then had to start proceedings to prove the will, even though Ms Simmonds did not present a defence.

The case proceedings went through the usual steps to a trial, and her biological father’s medical records and various other documents were analysed. The Judge ruled that there was nothing to suggest he was not of sound mind when writing his Will and that Ms Simmonds’ claim was unfounded.

Under CPR 57.7(5)(b), it was expected that the Claimant was to cover all of the incurred costs during the trial, as is standard. However, this case set a precedent when the judge ordered Ms Simmonds to pay the Claimant’s costs of £65,000 as the Court found she acted unreasonably. This was because Ms Simmonds possessed all of the evidence of the Will being valid prior to the trial, yet let the trial take place anyway without making any attempt at a defence.

How ARC Costs can Help Assist with any Probate or Inheritance Disputes

If you are working on a case surrounding the topic of probate and inheritance claims and require help or advice surrounding the CPR 57 guidelines, then our team of expert costs lawyers and costs draftsmen are available to assist you.

We are independent experts that regular assist both paying and receiving parties in contesting or recovering legal costs.  Our team can assist you in drafting the appropriate documentation for the proceedings and offer our advice on the costs that need to be assessed.  It is not uncommon for such proceedings to be subject to costs budgeting, and if any costs order is made in favour of any party on conclusion of proceedings (either from the estate or from another party), ARC Costs can assist in quantifying the Bill of Costs and negotiating this with the opponent.

Our team of costs experts can be contacted by email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on legal costs, please find out more about our speciality areas of expertise and our services on our legal costs page.

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