In September the England and Wales High Court in the matter reported as Goodwin v Avison & Others clarified the rules around costs that apply when a will challenge claim is abandoned midway through a trial.
The facts of the case are that the testator, Mr Goodwin, died in November 2018 having made a will dated 11 May 2017 (the “2017 Will”). He made the 2017 Will with the help of his son, Gary Goodwin, and his son’s then girlfriend, amending his previous wills.
Following Mr Goodwin’s death, Gary Goodwin applied for a Grant in respect of the 2017 Will, but his application for probate was opposed by Mr Goodwin’s daughter, Jacqueline Avison.
Gary Goodwin issued a claim for a decision by the court that the 2017 Will was valid. His claim was opposed by Ms Avison on the following grounds:
- That the 2017 Will was not executed correctly;
- That the deceased did not know or approve the terms of the 2017 Will; and
- That the 2017 Will was procured by undue influence of Gary Goodwin and Gary Goodwin’s then girlfriend.
Ms Avison counterclaimed for an order declaring against the 2017 Will and in favour of an earlier will dated 20 December 2005.
Ms Avison was later joined in her action by her four children, not all of whom were in agreement on their grounds of claim.
Following receipt of a report from a jointly instructed handwriting expert, the challenge that the 2017 Will was not validly executed was abandoned by the Avison family. The other grounds of dispute continued to trial.
However, on the sixth day of the trial, the Avison family dropped their challenge to the validity of the 2017 Will in its entirety and conceded the case. The Judge was then left with the task of deciding how the costs of the legal action should be allocated.
Though it is often assumed by parties to a will dispute that the estate will cover their costs, this is not rule! The general rule in any case of this type is that the losing party, apart from their own costs, will also pay the costs of the winner. The exception is when the testator can be said to have “caused” the litigation, in which case the court may determine that the costs should be paid from the estate. However, on the facts of the case the Judge felt that none of the issues in dispute raised by the Avison family could be laid at the door of the testator. Further, the Judge felt that the Avison family did not have reasonable grounds for challenging the 2017 Will based on the evidence that he had heard. In this case the Judge was satisfied that the Avison family, being the unsuccessful party in this case, must pay both their own costs and Gary Goodwin’s litigation costs.
Very careful thought and consideration should be given to establish whether a testator is in any way to blame in a will challenge claim. An example of this is if the testator had a tendency to lie to keep others happy, telling his children that they will benefit from his estate and later leaving his entire residuary estate to his partner. Any litigation later pursued by the children challenging the validity of the will on the grounds of undue influence by the partner, or lack of knowledge and approval of the terms of the will by the testator may be considered to be due to the testator’s misrepresentation and conduct. If the testator is not to blame, then the challenging party needs be very mindful that the general costs provisions, pursuant to which the losing party pays the winning party’s costs, will apply.
Before embarking on litigation, the challenging party should also fully analyse the merits of their case and should be aware that if the case is abandoned midway through litigation, for whatever reason, the court has the power to make a costs order as if the abandoning party is the losing party.
Our expert will dispute lawyers can assist people wishing to contest a will and those wishing to prove that the will is valid. For more information please visit our contentious probate web page, or contact us via the ‘get in touch’ box to the right of this page or on 01892 510000.