Think before Caveats

Think before Caveats

Elliott v Simmonds [2016] EWHC 732 (Ch)

Entering a Caveat against an estate is a relatively straightforward process but can have serious ramifications for the executors of an estate. It is all too easy these days for a potential claimant or family member with a grievance to enter a Caveat with no real understanding of the consequences of doing so. In the Elliott matter, the Defendant, Ms Simmonds entered a Caveat against the estate of her biological father, Kenneth Jordan.  Ms Simmonds, an illegitimate daughter of Mr Jordan’s was aggrieved that his latest will dated 2012, left everything to our client, the eventual Claimant of the proceedings. The Executor to the estate eventually entered a Warning to the Caveat and then in return Ms Simmonds filed a Notice of Appearance, the effect of which was to ‘fix’ the Caveat, which could not be removed without agreement and court involvement. This in turn opened a whole can of worms as the executor, faced with an estate he could not administer, had to issue court proceedings (in the High Court) to prove the Will in October 2014. In return Ms Simmonds took a ‘passive defence’ approach in accordance with Civil Procedure Rules 57.7(5)(a), which allows a person with a will challenge to enter no defence but forces the person, attempting to prove the will, to a trial. She had previously alleged the will was invalid on the grounds of a lack of capacity and/or knowledge and understanding and/or undue influence but taken no steps to bring a claim on any of these grounds. The executor had already been dealing with Ms Simmonds alleged claims by correspondence and in 2013 had provided her with disclosure of; the will file, copies of Mr Jordan’s previous wills, a witness statement from the will writer and substantial medical records.

At this point, Ms Simmonds still could have either brought a will challenge or extricated herself from the proceedings but she did neither. The effect of which was that our client, the major beneficiary was substituted as the Claimant of the proceedings. Witness statements were prepared and disclosure took place and finally some 13 months later the matter went to trial.  At trial the will writer gave evidence and Ms Simmonds, in accordance with CPR 57.7(5), was afforded the opportunity to cross-examine the will writer. The judge considered Ms Simmonds will challenges, or at least the capacity challenge and knowledge and understanding ones, and found nothing to substantiate these. He accordingly proved the will. Our client made an application for costs against Ms Simmonds on the grounds she had acted ‘unreasonably’ in challenging the will and in April of this year, costs were awarded against Ms Simmonds in excess of £100,000. One of the reasons in support of our contention that Ms Simmonds had acted unreasonably in opposing the will was that she had received disclosure of all relevant documents in 2013, prior to the proceedings having been issued. She therefore had sufficient time to consider the merits of her will challenge long before even entering the Caveat let alone entering her ‘passive Defence’.

What started out as a largely innocuous act of entering a Caveat, ended up with a serious costs order against Ms Simmonds. As solicitors acting on behalf of clients with grievances against beneficiaries or estates, it seems so obvious to enter a Caveat to prevent the estate being administered so as to consider the client’s claim. What is clear from the Elliott matter though is that solicitors should consider the act of entering a Caveat and re-evaluate their client’s claim as time passes. There will come a point where the potential claimant has received disclosure of all relevant documents and there has been sufficient consideration of the merits of a will challenge so as to put the client at risk of costs if they do not either agree to remove the Caveat or bring their will challenge. It is unlikely from now onwards that courts will tolerate, deliberate attempts to delay probate on spurious grounds. Whether the matter would have been considered differently had the Defendant not received early disclosure of all relevant documents remains to be seen. This reinforces the need for probate solicitors to release relevant documents to aggrieved family members who threaten claims as early as possible in proceedings. To delay in doing so, may actually only prolong the inevitable.

Tara McInnes, Contentious Wills and Estates, The Burnside Partnership

1 Comment

  • My late sister died intestate leaving no property, assets or money. Her estranged husband has applied for Probate in order to administer the estate but primarily, we believe, to get his hands on her Pension lump sum. My sister had named her two young daughters as beneficiaries. The probate form is incomplete as apparently he has not disclosed the number of siblings or children. Also as two of the three children are under 18, two administrators are required. Can probate be granted to him in these circumstances and who can be appointed as the second administrator. My remaining sister and I are concerned about this purely in respect of our late sister’s pension and who the lump sum should go to and have considered entering a Caveat to stop the Grant of Probate as, if he is granted probate and named as single beneficiary to the estate he could go to the trustees of the Pension Fund with this and claim the lump sum for himself and the children will never see or benefit from it.

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