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Need for specialist advice highlighted by High Court ruling on contentious probate

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A woman from Berkshire who lost her claim in 2013 against her late father’s estate to challenge the validity of his Will, may now have to pay more in legal costs, than the amount she was left in the Will.

Chloe Brennan was the daughter of Francois Devillebichot, and his only child. Her father died in March 2011, and left the majority of his estate, which was worth around £630,000, estate to his four siblings in his Will. Chloe was left the sum of £100,000, and issued a claim against the estate, alleging that two of her aunts had unduly influenced her father to make his homemade Will, and that he lacked knowledge and approval of the contents of it.

Chloe did not instruct a solicitor to act for her in the claim and at trial represented herself. She claimed that her father had been generous to her during his lifetime, and had told her on several occasions that she would inherit his estate. The trial judge, Mark Herbert QC TEP, agreed with Mrs Brennan that the circumstances of the execution were 'undoubtedly suspicious', but found that on the balance of probabilities, there was insufficient evidence to prove undue influence or lack of knowledge and approval. (Brennan v Prior, 2013 EWHC 2867 Ch).

The executors and beneficiaries of the estate then sought to recover their costs from Chloe Brennan on the indemnity basis, rather than their costs being paid out of the estate. This was on the basis that she has made various allegations of misconduct against all of them. The executors' costs at that point were around £87,000, and the beneficiaries' costs were said to be 'considerably more'.

The trial judge awarded a substantial part of the costs against Mrs Brennan, to be paid from her £100,000 legacy in the Will. However he did not specify whether her liability was limited to the amount of that legacy, therefore meaning that they could not recover the shortfall from her.  The beneficiaries therefore returned to the High Court to resolve the matter, and last month the Court ruled in their favour confirming Mrs Brennan's personal liability for costs was not to be limited to the amount of her £100,000 legacy (Brennan v Prior, 2015 EWHC 3082 Ch). Justice Snowden commented on the possibility that Mrs Brennan may have to 'sell her other assets (such as her home) ' to pay the bill.

This is a very unfortunate position for Mrs Brennan, but in my opinion highlights the need for people contemplating a challenge against a Will, to seek specialist legal advice from the outset. This is a very niche area of law with a lot of complexities and cost implications if not handled properly. In particular, allegations of undue influence are treated very seriously by the Courts and if unfounded, can have dire cost consequences. People may think that acting on their own, without a solicitor, will save them money, but as can be seen here, an adverse costs order can be made if the case is unsuccessful.

As a solicitor specialising in contentious probate cases, and member of the Association of Contentious Trusts and Probate Specialists (ACTAPS), I frequently have to advise and act for people in cases such as this. It is always my aim to advise people as early on as possible on their prospects of success and the risks of taking a case to trial, based on the evidence to hand.  Sometimes that advice may be negative, but had Mrs Brennan been so advised at the start of her case, she may not have lost her £100,000 legacy, and now be liable for a large shortfall in the legal costs ordered against her.

For a fixed fee of £79.95, you can have a 30 minute appointment with myself, either on the telephone, or face to face, depending on your preference.  We will take some details from you before the appointment, and I will then discuss your case with you, and what your options are.  If your case is something that we can then help you further with, we can then discuss your funding options with you. Call us on 01616 966 229.