Do obstructive caveators need to put their money where their mouth is?

Will disputes are on the rise. People are generally more aware that it is possible to challenge the validity of a will and/or to make a claim against an estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The media has begun to take a keen interest in reporting such claims and estates are, since the increase in property prices over the last few decades, increasingly worth fighting over. 

Where the validity of a will is in dispute, the potential claimant can be quick to enter a caveat at the probate registry. This will prevent a grant of probate being issued and the estate being administered and distributed to the beneficiaries under the will. There is no threshold to overcome to be able to put in such a caveat. A short form and a fee of £20 is all that is required. The caveat can be renewed every six months. So where does this leave the beneficiaries who believe that the will is valid? Particularly where the person who entered the caveat (the ‘caveator’) produces no evidence to shed serious doubt on the validity of the will? 

This situation occurs commonly. People can be quick to enter a caveat but unwilling or unable to spend the time and money in legal fees to adduce evidence – to put their money where their mouth is. The first step for the beneficiaries is to warn the caveat. This process is easy for the caveator to overcome by sending another short form to the probate registry, called an appearance. Once this appearance is entered the caveat becomes permanent and can only be removed by court order. The estate becomes deadlocked until it is either removed by consent amongst the parties or an order is made as a result of probate proceedings determining the validity of the will. 

This situation arose in the recent case of Elliot v Simmonds and another [2016] EWHC 732 (Ch). The beneficiaries were forced to issue probate proceedings in the High Court to prove the validity of the Will. The caveator, Ms Simmonds, had made various allegations against the will but had produced no evidence. Ms Simmonds did not enter a full defence to the probate claim, which would have required her to produce arguments against the validity of the will; instead she entered what is known as a ‘passive defence’. This passive defence is available in probate proceedings only and allowed her to insist on the will being proved by the beneficiaries to the satisfaction of the court at trial. She could effectively do nothing and put the beneficiaries through the ordeal and cost of taking the matter to court. 

In the event, the judge found that the will was valid. The deadlock was finally broken; three years and tens of thousands of pounds later. Thankfully for the beneficiaries the story did not end there. 

The beneficiaries made an application for costs against Ms Simmonds. They said that she had acted unreasonably in opposing the will. The court agreed and ordered her to pay costs, to be assessed if not agreed with an initial payment of £65,000. 

The decision will bring some comfort to the beneficiaries of estates in a permanent caveat deadlock, where the caveator refuses to acknowledge weaknesses in their claim and to adduce evidence to support their opposition. However, one cannot help but feel sorry for the beneficiary in the Elliot case who had to take matters all the way to the High Court on validity and costs in order to break through and administer what turned out to be a perfectly valid will.