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  • FIRST POST
    • Spanishomelette
    • By Spanishomelette 4th Jan 18, 10:22 PM
    • 53Posts
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    Spanishomelette
    Can you reclaim costs of defending a contested will
    • #1
    • 4th Jan 18, 10:22 PM
    Can you reclaim costs of defending a contested will 4th Jan 18 at 10:22 PM
    I am acting as executor for a dear friend of my elderly mother who died earlier this year. She left a Will and my mother and I had discussed her wishes with her in terms of funerals, how to contact people etc.

    She had two stepchildren, one of whom had not spoken to her for more than 40 years, and the other had contact only by exchanging Christmas and birthday cards, although even that had stopped over recent years.

    I applied for and was granted probate, am dealing with the sale of her property and have kept the beneficiaries informed. The stepchildren were each left a sum of a few thousand pounds, as were several other beneficiaries.

    A few weeks ago I received a letter from a solicitor representing the stepchildren advising me they are going to claim under the Inheritance Act 1975. I had to take legal advice to protect the interests of the estate, and have been told the stepchildren have an absolutely negligible chance of getting anything from the estate as they were not maintained in any way by this lady. As I said, there had been no contact with one at all, and very limited with the other.

    The two residuary beneficiaries now have to consult solicitors as the stepchildren are now trying to claim the will was not correctly made. It was properly made by a solicitor, properly witnessed, etc. In fact, the solicitor I consulted on behalf of the estate said the solicitor representing the stepchildren is "throwing the kitchen sink" at us because they really have no hope of claiming anything.

    The question I have been asked by the residuary beneficiaries is whether the costs they incur in having to defend themselves in a future threatened court case can be reclaimed from the legacies due to the stepchildren rather than from the residue they are due to receive.

    Obviously I am neutral in this, but I can see that it is wholly unjust to have to pay out potentially thousands of pounds in solicitors fees to defend yourself against completely unfounded claims which are, quite frankly, dishonest.
Page 1
    • Keep pedalling
    • By Keep pedalling 4th Jan 18, 10:38 PM
    • 4,313 Posts
    • 4,689 Thanks
    Keep pedalling
    • #2
    • 4th Jan 18, 10:38 PM
    • #2
    • 4th Jan 18, 10:38 PM
    If it came to court then it is likely that the court would award costs against the loosing party. If as more likely that this is all bluff which never reaches court each side would pay there own legal costs, which is more likely to be hundreds rather than £1000s.
    • Yorkshireman99
    • By Yorkshireman99 5th Jan 18, 1:16 AM
    • 3,516 Posts
    • 2,873 Thanks
    Yorkshireman99
    • #3
    • 5th Jan 18, 1:16 AM
    • #3
    • 5th Jan 18, 1:16 AM
    I am acting as executor for a dear friend of my elderly mother who died earlier this year. She left a Will and my mother and I had discussed her wishes with her in terms of funerals, how to contact people etc.

    She had two stepchildren, one of whom had not spoken to her for more than 40 years, and the other had contact only by exchanging Christmas and birthday cards, although even that had stopped over recent years.

    I applied for and was granted probate, am dealing with the sale of her property and have kept the beneficiaries informed. The stepchildren were each left a sum of a few thousand pounds, as were several other beneficiaries.

    A few weeks ago I received a letter from a solicitor representing the stepchildren advising me they are going to claim under the Inheritance Act 1975. I had to take legal advice to protect the interests of the estate, and have been told the stepchildren have an absolutely negligible chance of getting anything from the estate as they were not maintained in any way by this lady. As I said, there had been no contact with one at all, and very limited with the other.

    The two residuary beneficiaries now have to consult solicitors as the stepchildren are now trying to claim the will was not correctly made. It was properly made by a solicitor, properly witnessed, etc. In fact, the solicitor I consulted on behalf of the estate said the solicitor representing the stepchildren is "throwing the kitchen sink" at us because they really have no hope of claiming anything.

    The question I have been asked by the residuary beneficiaries is whether the costs they incur in having to defend themselves in a future threatened court case can be reclaimed from the legacies due to the stepchildren rather than from the residue they are due to receive.

    Obviously I am neutral in this, but I can see that it is wholly unjust to have to pay out potentially thousands of pounds in solicitors fees to defend yourself against completely unfounded claims which are, quite frankly, dishonest.
    Originally posted by Spanishomelette
    Unfortunately the costs do effectively fall on the residual beneficiaries. However as others have said it does sound like pure bluster. The executor(s) need to use a firm that specialises in contentious probate and have it made very clear to the applicants that they will be expected to put up a substantial sum for costs.
    Last edited by Yorkshireman99; 05-01-2018 at 12:23 PM.
    • Spanishomelette
    • By Spanishomelette 5th Jan 18, 6:30 AM
    • 53 Posts
    • 30 Thanks
    Spanishomelette
    • #4
    • 5th Jan 18, 6:30 AM
    • #4
    • 5th Jan 18, 6:30 AM
    If it came to court then it is likely that the court would award costs against the loosing party. If as more likely that this is all bluff which never reaches court each side would pay there own legal costs, which is more likely to be hundreds rather than £1000s.
    Originally posted by Keep pedalling
    Thank you, Keep pedalling. Unfortunately the cost of the solicitor I consulted is not much short of £2,000 already. Hardly fair to the residuary beneficiaries to have to lose this money, but absolutely necessary when the claimants' solicitor tries to blind a non-expert with science (or bs as I later found out!).

    I would like to think it is all bluster, but I have my doubts. Either that, or they are just trying to put us to unnecessary expense.
    • Spanishomelette
    • By Spanishomelette 5th Jan 18, 6:35 AM
    • 53 Posts
    • 30 Thanks
    Spanishomelette
    • #5
    • 5th Jan 18, 6:35 AM
    • #5
    • 5th Jan 18, 6:35 AM
    Unfortunately the costs do effectively fall on the residual beneficiaries. However as others have said it does sound like pure bluster. The executor(s) need to use a firm that specialises in contentious probate and have it made very to the applicants that they will be expected to put up a substantial sum for costs.
    Originally posted by Yorkshireman99
    Thank you Yorkshireman99. I have gone as far as I can at the moment as executor, as I am not a beneficiary. However, sadly the two residuary beneficiaries, one of whom is almost 90, can ill afford to consult a solicitor, which is extremely frustrating.

    I have had to keep both residuary beneficaries up to date with developments, and the more elderly of the beneficiaries is now so worried she is not sleeping. So sad when she is absolutely blameless in this mess.
    • Sea Shell
    • By Sea Shell 5th Jan 18, 7:33 AM
    • 454 Posts
    • 461 Thanks
    Sea Shell
    • #6
    • 5th Jan 18, 7:33 AM
    • #6
    • 5th Jan 18, 7:33 AM
    Just as a side question.... what would happen if the Executors or Beneficiaries don't/can't consult with a solicitor? What is the next "weapon" that the solicitors of the contestee can throw at them.....before it gets as far as a court??

    Are they able to "win" purely on the basis that their "contest" is not defended, or is the burden of proof still on them that they have a case?
    " That pound I saved yesterday, is a pound I don't have to earn tomorrow "
    • Keep pedalling
    • By Keep pedalling 5th Jan 18, 8:37 AM
    • 4,313 Posts
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    Keep pedalling
    • #7
    • 5th Jan 18, 8:37 AM
    • #7
    • 5th Jan 18, 8:37 AM
    How long ago was probate granted?
    • Yorkshireman99
    • By Yorkshireman99 5th Jan 18, 9:40 AM
    • 3,516 Posts
    • 2,873 Thanks
    Yorkshireman99
    • #8
    • 5th Jan 18, 9:40 AM
    • #8
    • 5th Jan 18, 9:40 AM
    Just as a side question.... what would happen if the Executors or Beneficiaries don't/can't consult with a solicitor? What is the next "weapon" that the solicitors of the contestee can throw at them.....before it gets as far as a court??

    Are they able to "win" purely on the basis that their "contest" is not defended, or is the burden of proof still on them that they have a case?
    Originally posted by Sea Shell
    The executors can defend themselves without a solicitor. It may be possible to get help on a pro bono basis i.e. a solictitor may do it for free.
    • FreeBear
    • By FreeBear 5th Jan 18, 10:46 AM
    • 1,417 Posts
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    FreeBear
    • #9
    • 5th Jan 18, 10:46 AM
    • #9
    • 5th Jan 18, 10:46 AM
    How long ago was probate granted?
    Originally posted by Keep pedalling
    If it were more than six months ago, the "claimants" are out of time. They have also left it too late to challenge the validity of the will - They should have entered a caveat before probate was granted and then contested.

    In short, their solicitor is huffing and puffing - I bet he quoted the Illot-v-Mitson case - If so, the BS assessment is probably correct.


    I had a similar issue when acting as an executor two years ago - The solicitor writing to me specialised in maritime issues and advising fishermen. In no way an expert in contentious probate, and it fizzled out after six months from probate being granted. Had no need for a solicitor on my side, but I did have some heavyweights in my back pocket who did have the experience of this sort of thing.
    Her courage will change the world.

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