Costs legacy

Posted: 16th February 2012

A recent case illustrates that those who challenge a will may find themselves liable for costs unless the challenge has some substance to it.
George Wharton, 78, had terminal cancer. In 2008 he made a deathbed will leaving his estate to his long-standing partner, whom he married shortly afterwards. He made no provision in the will for his three daughters from previous relationships.

The will was challenged by Mr Wharton’s daughters on the basis that their father did not know and approve of its contents and that undue influence was brought to bear on him by his wife. The allegations were found to be unsubstantiated.
It is a general rule in assessing liability for costs in litigation that the losing party will be liable both for his own costs and for those of his opponents. In the case of a disputed will, this general rule can often be displaced and an order made by the court for the costs to come out of the disputed estate.
The judge was invited to order that the costs of the action should come from the estate but instead ordered that the deceased’s daughters should bear the costs on the basis that neither Mr Wharton’s actions nor those of his widow had led to the case being brought to court and that there were no reasonable grounds to question the validity of the will.

Mr Justice Norris commented,“A case based on undue influence is one founded upon a very serious charge which ought not to be pleaded or pursued unless there is a proper factual foundation from which the necessary inference can be drawn.”
The daughters were also ordered to pay the costs of the solicitor who drew up the will and against whom allegations of improper conduct had been made that were not proven.
Clearly, anyone contemplating challenging a will needs to be aware of the risks of becoming liable for costs and to consider carefully the strength of the grounds for the challenge before proceeding.