Court orders solicitor to pay 60% of costs in will challenge

In a recent legal decision, the court denied a request to amend clause 11 in James Murray McKay’s will, which pertained to the distribution of the residual estate, as reported by The Law Society Gazette.

Family members had argued that McKay’s true intention was for the residual estate to solely benefit the family, not charities. Despite the claim’s failure, GWCA Solicitors Limited, inheriting responsibilities from BBMW Limited, which initially drafted the will, was instructed to cover 60% of the related legal costs.

Sitting in retirement, Master Teverson said that though the claim failed, it was a “reasonable one to bring”. He added:

“A competent solicitor would have appreciated the need to confirm the deceased understood the effect of clause 11 was to include the charities within the distribution of his residuary estate and the need to ascertain what proportion of his residuary estate the deceased intended each of the charities to receive.”

The court acknowledged the legitimacy of bringing forth the challenge but ruled it unjust for the solicitors to shoulder the entire financial burden, noting BBMW’s missed opportunity to clarify the will and its responses that arguably propelled the rectification effort.

The decision also reflected on the firm’s acknowledgment of its role due to the ambiguous wording in the disputed clause. The verdict pointed out the significant inadequacies in how the deceased’s instructions were recorded, leading to the dispute.

Ultimately, the court determined that GWCA should bear a substantial part of the costs, taking into account the risk assumed by the claimant in a failed suit.

Read case here.

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