The recent case Elliott v Simmonds involving my client Ruth Elliott has set a legal precedent, offering charities and others protection against the costs incurred when a will is challenged and a passive defence is raised.
A passive defence is when a defendant alleges concerns over a will without bringing a will challenge or laying out the basis for their own claims. This forces the executor, such as a charity, to issue proceedings to prove the will.
Once proceedings are issued, instead of raising a will challenge as a defence, the defendant can under the Civil Procedure Rules rely on a "passive defence". In other words, they don't have to set out their objections to the will but can wait for it to be proved at trial. This forces the executor to go to court before they can administer the estate.
Under CPR where a passive defence is raised the defendant will not be liable for costs unless the defendant has acted unreasonable in bringing a challenge. This ‘no costs rule’ can leave charities reluctant to issue proceedings or can force them to settle a weak claim. In this case, the judge found that Simmonds had acted unreasonably in bringing such a defence and forcing the matter to trial, and ordered Simmonds to pay Elliott in excess of £65,000 in legal costs, which is encouraging for charities faced with such legacy battles.
These types of passive defence cases have been used tactically by those not illegible to claim under the Inheritance (Provision for Family and Dependants) Act 1975 but whom want to delay matters and increase costs with no real risk to themselves. A passive defence can also be used where there is a weak will challenge in the hope that evidence will turn up’ during the proceedings.
Clearly this kind of tactical usage of the CPR is not in keeping with the overriding objective and would not have been the intention of the rules.
The case of Simmonds has now set a precedent against this type of behaviour and shows that the courts will no long allow disgruntled family members to act obstructively, cause delay and increase costs with no financial risk to themselves.
So what should charities do when faced with the decision whether to issue proceedings to ‘prove’ a will?
Each case turns on its merits but if there is no other option and where the executor is satisfied that the will is valid, then proceedings should be issued. Where a defendant then enters a passive defence and there is strong evidence that the defendant is using it tactically and has no intention of bringing a claim then the charity/executor should warn the defendant of the risk of costs, referring them to the Elliott case.
Also, you should provide the defendant with early disclosure of all relevant documents so they can consider the merits of their claim prior to issuing. If the defendant continues to act obstructively and forces the matter to trial where the will is proved then charities should be confident about making an application for costs against them.
Tara McInnes is senior associate in the dispute resolution team at the solicitors Gardner Leader
The full judgments can be accessed at: Elliott v Simmonds  EWHC 732 (Ch) Costs: Elliott v Simmonds  EWHC 962 (Ch)