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The dangers of losing a contentious probate claim

The recent judgment in the case of Stephen David Breslin (Executor & Beneficiary of the estate of Marjorie Beck, deceased) v (1) Peter Bromley (Executor of the estate of Marjorie Beck, deceased) (2) Anne Elizabeth Lockwood (3) Linda Breslin [2015] is a stark warning of the cost risks in a contentious probate claim and that litigation should not be entered into lightly.

Undue influence

Mr Breslin was the executor and beneficiary of his aunt’s will. He had taken his aunt to a solicitor so that a will could be prepared on her behalf. Instead of executing her will in the solicitor’s office, however, his aunt executed it elsewhere, in circumstances that some of the beneficiaries found dubious. Ms Lockwood and Ms Breslin therefore challenged the validity of the will. Ms Breslin also accused Mr Breslin of unduly influencing his aunt but later abandoned this claim. Mr Breslin was successful in his claim for a declaration that his aunt’s last will was valid.

The court was then asked to determine the appropriate costs order. Ms Lockwood and Ms Breslin argued that they should not have to bear any costs because the litigation was Mr Breslin’s fault for not ensuring that his aunt properly executed her will.

Contentious probate claim

The normal rule in civil litigation is that costs follow the event: this generally means that the losing party is ordered to pay the winning party’s costs. In contentious probate proceedings, however, the court can make an order that costs are to be paid out of the estate. Such a costs order is usually made where the person making the will or the main beneficiary is considered to be responsible for the litigation. The court may also order that the parties bear their own costs, if the circumstances of a particular case meant that it was reasonable for there to have been an investigation.

In this case, the court made it clear that they did not view Mr Breslin or his aunt as the cause of the litigation and instead, took the view that it was Ms Breslin who had taken a commercial decision to issue court proceedings, which had been a mistake. As a result, the court determined that it was only fair that she should pay at least some of Mr Breslin’s costs and ordered her to make a payment of £70,000.

Ms Lockwood’s position was slightly different, as she had not put forward a positive claim that the will was invalid, but had simply insisted on the will being proved in solemn form. In the circumstances, the court found that it would be inappropriate to make any costs order against her. However, she was ordered to bear her own costs.

The moral of this story is that, before undertaking a contentious probate claim, you need to make sure you fully understand the risks involved, namely, that if you fail to make out your claim, you may have to pay not only your own legal costs but also those of the winning party. As this case makes clear, these costs can easily run into the tens of thousands of pounds.

If you are unsure whether you have prospects of bringing a claim or wish to discuss your particular circumstances, please do not hesitate to contact Kate Atkins on 0117 3945087 or katkins@lyonsdavidson.co.uk

Posted on Dec 31st, 2015 by Lyons Davidson

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