The Lesson in Elliott v Simmonds – Proceed with Caution


One of my recent cases demonstrates the importance of charities asking for costs orders against persons who seek to bring will challenges but fail to do so.

This matter concerned my client (eventually the Claimant), the major beneficiary of an estate and the Defendant, an illegitimate child of the deceased from a previous relationship when he was very young.

The deceased had worked hard all his life and built up a good business. He met my client many years ago and they formed a relationship.  An illegitimate child from a much earlier relationship came back into his life when she was in her forties.  The deceased was happy to build a relationship with her but already had two children and a wife of fifty years and did not really consider her to be family.

The deceased fell out with his family and left the entirety of his estate to my client in his 2012 Will. Aggrieved with this decision, Ms Simmonds (the Defendant) proceeded to enter a caveat against the estate and raise various will challenges against the 2012 will in correspondence.  However, she took no steps to bring an actual claim and after many years and significant costs the executor issued proceedings to prove the Will in October 2014.  Instead of raising a will challenge as a defence, the Defendant raised a passive defence in accordance with The Civil Procedure Rules.  Throughout the proceedings, the Defendant continued to insist that she would bring a will challenge but failed to do so, even when provided with additional time by the judge.

Instead she forced the matter to go to trial in December 2015, where Deputy Judge Murray found in my client’s favour.

In fact, the judge held:-

I have concluded that none of the individual arguments raises a reasonable ground on which to oppose the will. I have also considered and rejected the conclusion that somehow, taken together, they raise a reasonable ground”.

He accordingly ordered that the will be proved and the caveat removed. A happy ending you might think, however my client had incurred significant costs as a result of the Defendant’s behaviour and accordingly we made an application for costs against the Defendant on the grounds she had acted unreasonably in raising a challenge against the will.   

There is usually a ‘no costs rule’ in these types of proceedings UNLESS it can be shown that the Defendant had ‘no reasonable grounds for opposing the Will’. We argued that the Defendant had all relevant documents in her possession by 3 June 2013 and at this point she should have been in a position to consider whether or not she had serious grounds for challenging the will but she did nothing and forced the matter to go to trial.

The judge agreed and ordered costs against her, to be assessed if not agreed with an initial payment of £65,000.

Whilst no charities were involved in this case, these types of proceedings can be brought by disgruntled relatives who do not bring a will challenge but want the charity beneficiaries to incur the costs of proving the will hoping that in the meantime, the charities will be forced into settling a weak claim. 

This case has now set a precedent against this type of behaviour and shows that the courts are no longer willing to allow disgruntled family members to act obstructively and cause delay and increase costs with no financial cost to them. Charities should be aware of this important case and especially the costs decision should they come across this type of matter in the future. 

The full judgments can be accessed at:-

Elliott v Simmonds [2016] EWHC 732 (Ch)

Costs: Elliott v Simmonds [2016] EWHC 962 (Ch)

As I acted in this matter, I am able to provide tailored advice in this unusual area of contested probate.


This article also appeared in The Times – The Brief 28 June 2016

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