The press has recently highlighted several inheritance dispute claims being decided in the High Court. There is now a strong awareness that a Deceased’s wishes may be disputed even when the Deceased left a Will. Case law have indeed determined circumstances in which a Will may be disputed and this particular type of litigation is defined in Rule 1(2)(iii) of CPR Part 57 as a probate claim for:
“A decree pronouncing for or against the validity of an alleged Will; not being a claim which is non-contentious (or common form) probate business”.
In brief, it is accepted that a Will may be disputed on several grounds:
- Lack of due execution
- Lack of testamentary capacity
- Lack of knowledge and approval
- Undue influence
- Forgery and fraud
In addition to the above grounds, the Inheritance (Provision for Family and Dependants) Act 1975 allows claimants to seek financial provision from an Estate even though the Deceased has not made such provisions in their Will. A claim under the 1975 Act is not a challenge to the validity of a Will as defined in Rule 1(2)(iii) but is a claim for the redistribution of the Estate on the grounds permitted by that Act.
Costs
It is known that any litigation is expensive and probate claims are no different. If anything, probate claims can be more expensive than other forms of litigation due to the nature of the claim and the amount of work and investigation involved. Probate claims are a form of hostile litigation and the two general rules stated in CPR Rule 44.3 (1) and (2) apply to the effect that:
Costs are in the discretion of the court; and
Costs will follow the event.
It is often misconceived that costs in probate claims would automatically come out of the Estate. This is not necessarily true as in the first instance the general rule that the unsuccessful party pays the costs will apply. However, there are two long established exceptions to this general rule and they are:
If the testator or the persons interested in the residue of the Estate have been the cause of the litigation, the costs of unsuccessfully opposing probate may be borne by the Estate; and
If the circumstances of the case are such that it was reasonable for there to be an investigation in regard to a propounded document then the party’s costs should be borne by those who had incurred them.
The above established exceptions came from the decision in Spiers –v- English [1907] P122 and these principles were later confirmed in the case of Costrc –v- Chaplain [2007] and was recently applied in Re Ritchie [2009].
Therefore, any party considering a probate claim should not assume that their costs would be borne by the Estate. As previously stated, probate claims can be more expensive than other forms of litigation and in some instances, the costs incurred may be in excess of the value of the Estate. Any party considering litigation should consider whether their costs will fall within the two exceptions to the general rule. Should the nature of their claim not fall within the two exceptions, then the party considering litigation should weigh the costs and risks involved.
Gill –v- RSPCA [2009]
A case of particular relevance to the issue of costs is Gill –v- RSPCA [2009]. In this case, Christine Gill disputed the validity of her late mother’s (Mrs Gill’s) Will. According to the terms of the Will, upon Mrs Gill’s death, the Estate would vest in appointed trustees to be held on trust for the RSPCA. Christine Gill’s parents had made mirror wills which they executed on 27 April 1993. By terms of each Will, the maker left all their property to the other spouse absolutely provided the spouse survived the maker for a period of one month. If they did not or if he or she predeceased the maker, then all property would vest in appointed trustees to pay funeral and testamentary expenses and hold the reside on trust for the RSPCA. The mirror Wills expressly made it clear that Christine Gill was not being provided for in paragraph 5.
“I declare that no provision is hereby made for my daughter because I feel that she has been well provided for by me over a long period of time.”
Mr Gill passed away on 19 April 1999 and Mrs Gill died on the 1 September 2006. Upon Mrs Gill’s death according to the Will, the Estate was to go to the animal charity, the RSPCA. Christine Gill initially commenced proceedings under the 1975 Act. Christine Gill also challenged the validity of the Will on the grounds that her mother did not know of and approve the contents of the Will and was therefore not aware that upon her death, the combined estate would go to the RSPCA. Christine Gill also contended that her late mother was coerced into making mirror Wills and therefore, had not made the Will out of free volition. Alternatively, Christine Gill claimed proprietary estoppel as she was often led to believe by Mrs Gill that she would inherit the farm house and the farming business and hence acted to her detriment in reliance upon her parents’ encouragement.
Judgement for Gill –v- RSPCA
In relation to the lack of knowledge and approval, it is accepted that if there is a suspicion, the burden of proof rests on those propounding the Will. The proof would consist of evidence that the testator completely understood, adopted and sanctioned the disposition as stated in the Will. In this particular instance, the RSPCA succeeded in proving that Mrs Gill had known and approved the terms of the Will since there was evidence that both parents had attended the meeting at which instructions for their Wills were given. In addition, a reason for excluding Christine Gill had been given. The Solicitor who prepared the Wills had also advised them as to the possibility of a claim under the 1975 Act. The Wills were then read, confirmed and signed. The RSPCA therefore succeeded in dispelling the suspicion and Christine Gill’s claim of lack of knowledge and approval failed accordingly.
As regards undue influence, it is known that the burden of proof rests on the claimants. The burden of proof in establishing undue influence in probate claims is much higher and proving influence in the form of advice, suggestion, or persuasion is not sufficient. The claimant proving undue influence has to establish coercion. It was proven that Christine Gill’s mother wished for Christine Gill, their only child, to inherit the farm upon her death. However, Mr Gill had determined that Christine Gill would not inherit anything upon their deaths. It was found that Mr Gill was a stubborn, self-opinionated, domineering man who was prone to losing his temper. Mrs Gill was a shy and timid person suffering from agoraphobia and was very dependant upon Mr Gill. Mrs Gill also sought to avoid confrontation by doing what Mr Gill wished and therefore executed a Will in circumstances in which she felt constrained. It was therefore found that Mr Gill had exerted pressure and coerced Mrs Gill to make a Will which did not reflect her wishes. As a result, coercion was established and the Will was set aside.
It was also held by the Judge that even if a claim for undue influence had not succeeded, the court would have ruled that it was a case for proprietary estoppel. This is because both parents encouraged Christine Gill to believe that the farm would be hers upon their death. Mrs Gill had reassured Christine Gill on several occasions that “she would have the farm”. Mrs Gill made it clear that whatever Christine Gill did, she would always have the farm to rely upon. Based upon this reliance, Christine Gill had made personal sacrifices to help with the farm. It was found that Christine Gill performed substantial work comprising of stacking bales of straw at harvest time, driving tractors, shovelling grain into the grain dryer, operating a grain dryer, leading bales on the field to storage, amongst other chores. In addition, Christine Gill assisted Mr Gill in the administration of the farming business and from 1997, she took responsibility to sort out problems such as drainage. Christine Gill’s expectations were encouraged when Mr and Mrs Gill suggested that Christine Gill and her husband purchase White House Farm, a derelict farm adjoining the main farm so that “the family controlled the whole patch”. It was also found that Christine Gill acted to her detriment since she did not make applications for positions with firms like Glaxo or any pharmaceutical firm at all since she believed she would eventually take over the farming business.
The Court found that Christine Gill relied upon reassurance provided by Mrs Gill given in the context of:
The close and loving relationship between Christine Gill and her parents.
The tradition of inheriting farms in Yorkshire farming families.
The acknowledgement and approval of that tradition by Mr and Mrs Gill.
It was therefore ordered that the farm, the business and any money in the farming account should be transferred to Christine Gill.
Costs Consequences in Gill –v- RSPCA
Christine Gill succeeded in disputing the wishes of her late mother. Pursuant to the terms of the Will, the RSPCA were to benefit approximately £2 million from the Estate. Since the Will had left the Estate in trust for the RSPCA, the Charity pursued a legitimate inheritance. However, in attempting to propound the Will, the RSPCA incurred substantial costs. By the time the Court decided in favour of Christine Gill, total costs had increased to £1 million and this is the bill that the RSPCA is currently facing.
The RSPCA have decided to appeal this decision and the appeal is expected to commence soon. The appeal decision will have a serious impact on charities’ decisions to pursue legitimate inheritances if they will be faced with such substantial bills. Any charity pursing a legitimate claim should firstly consider mediation or negotiation. Should mediation or negotiation fail, then the charity should consider the cost consequences of pursuing a claim and consider various ways of funding the claim such as entering into a No Win/No Fee Agreement and obtaining After the Event Insurance in order to protect themselves from costs.
Wright Hassall is able to offer these funding arrangements in some circumstances. If you would like a no-obligation chat about how much it will cost to dispute a Will, please contact Martin Oliver on 01926 880751.
