Winner takes all? Costs of probate disputes where a Will challenge is abandoned

30th November 2021 Will Disputes

Background

The testator in the case was Tom Goodwin, a businessman and farmer who died in November 2018. The Judge described Tom as a 'wily' Yorkshireman, who made promises he did not keep and told people things they wanted to hear. He was a successful businessman, whose estate was worth between £3-£4 million, including several farms and a Rolls Royce.

The Deceased made a Will in 2017 with the assistance of Ms Grime, the then-girlfriend of his son Gary Goodwin. Gary was appointed as the Executor of the Estate. The Will was then formalised by solicitors and duly executed.

Upon the Deceased’s death, Gary Goodwin’s applied for the Grant of Probate. However his application was opposed by his sister, Jacqueline Avison, who alleged that:

  1. The Will had not been executed properly;
  2. That the testator had not been fully aware of its contents; and ,
  3. That Gary Goodwin, and his girlfriend Ms Grime had exerted undue influence.

Avison was joined in her action by her four children. The Avison family were due to benefit significantly more from a 2005 Will that had previously been executed.

Having sought a report from a handwriting expert, the Avisons abandoned the challenge to valid execution. However, the challenge on the other grounds continued and reached trial in August 2020. For whatever reason, on the sixth day of trial, the Judge was informed that the Avison Family no longer challenged the 2017 Will.

The matter proceeded to a costs hearing, where each of the Avisons attempted to avoid adverse orders for costs. The Avisons argued that it had been reasonable for them to raise the issue of due execution prior to receiving the expert report. In relation to the claims of lack of want and knowledge and undue influence, they argued that the Deceased’s conduct had caused the litigation.

Costs Principles

Davis-White HHJ provided a helpful reminder as to the 2 probate specific costs principles to bear in mind when conducting a Will challenge;

  1. There is a case for the costs to come out of the estate if the Testator's conduct has really been the cause of the litigation; and
  2. If a party has reasonable grounds for disputing the will, then each side should bear their own costs.

Application of Principles to the Facts

Davis-White HHJ concluded that the Avisons, being the unsuccessful party, had to pay both their own, as well as the claimant’s, costs. On all three issues raised by the Avisons, none could be said to have been caused by the Deceased. Further, the Judge refuted the idea that the Avisons had reasonable grounds for challenging the Will.

Significance

Before commencing any action, it is essential to conduct a proper analysis of the merits of any potential claim, in particular, whether there are any reasonable grounds for challenging the Will, or alternatively, whether the cause of any potential litigation can be ascribed to the Testator. Goodwin v Avison is a timely reminder that costs will not always be paid from the estate in fanciful Will challenge claims.

Our expert Contentious Wills and Probate team at JMW Solicitors will be able to investigate the merits of any potential Will challenge claim and provide advice as to the same. To speak with a member of the specialist team in relation to this or any other matter, please call JMW on 0345 241 5305. Alternatively, you can fill in our online enquiry form and we will get back to you at the earliest opportunity.​​​​​​

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Jac Evans is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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