Costs And Probate Disputes

There is no doubt that probate disputes are on the increase. Recent years have seen a minor explosion in people challenging the Wills of their late relatives. There is also no escaping the fact that the legal costs arising out of such disputes can be disproportionately large compared to the size of the estate. It is commonly held belief that such costs will fall to be met out of the estate but is this always the case? A recent case demonstrates that, in the normal probate dispute, an unsuccessful claimant may not be heavily penalised in costs but that one who unrealistically pursues a weak case may come unstuck and end up 'out of pocket'. The starting point is contained in the Civil Procedure Rules ("CPR"). It is always in the discretion of the court whether or not one party is required to make a contribution towards the legal costs incurred by the other. The CPR however provide that, if the court decides to make an order about costs, 'the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party'. The extent to which the 'general rule' applies in probate disputes was recently examined by Mr Justice Norris in the case of Wharton v Bancroft and Others. In this case, Mr Wharton ("George") died in 2008 and was survived by his second wife, Maureen, and by his three adult daughters. George and Maureen had been living together for 32 years but only married three days before George's death from terminal cancer. He had been discharged from hospital earlier that day so that he could spend his last few days at home. During this time his solicitor visited him at home and took instructions from him for a Will. This left his entire £4m estate to Maureen, in contemplation of their marriage which took place the same evening. Essentially George made a 'deathbed Will' and then married his long term partner. The solicitor who took instructions and prepared the Will was Mr Bancroft. Following George's death, his daughters challenged the validity of his Will. They argued that it should be held to be invalid either because George did not have the necessary knowledge and approval at the time he gave instructions and signed the Will or, alternatively, because the Will had been procured as a result of undue influence by Maureen. Norris J rejected these arguments and pronounced in favour of the Will. He then proceeded to give a robust judgment on the question of the costs incurred by Maureen and the executors and directed...