The Consequences of Unreasonably Forcing Proof of a Will in Solemn Form
On occasion, a Court may conclude that a disgruntled beneficiary’s agenda was simply to put up roadblocks to the executor without having any real intention or expectation of successfully challenging the validity of a Will. Such was the case in Elliot v Simmonds  EWHC 732 (CJ), which imposed costs sanctions against an individual whose “passive objection” to a Will was found to unreasonably require the executor to prove the Will in solemn form.
In England and Wales (as in Ontario), a person with a financial interest or the executor may seek proof of a will in solemn form (i.e. in open court) upon notice to all persons appearing to have a financial interest in the estate. The court must be satisfied, upon the examination of the witnesses, of the due execution of the Will and of the testamentary capacity of the testator. The onus of proving due execution and testamentary capacity is upon those propounding the Will. (The Ontario Court of Appeal recently pronounced in detail on proof in solemn form in the context of Rule 75 of the Rules of Civil Procedure in Neuberger Estate v. York 2016 ONCA 191). A previous blog on Neuberger Estate v. York can be found here.
In Elliot v. Simmonds, the Deceased (Mr. Jordan) left his entire estate to his wife (Ms. Elliot) and left nothing to his illegitimate daughter (Ms. Simmonds). Ms. Simmonds lodged a caveat (analogous to a Notice of Objection in Ontario) to prevent Ms. Elliot from obtaining probate. Furthermore, Ms. Simmonds made various allegations impugning the validity of the Will, but took no active steps to produce evidence in support. Eventually, the executor of the estate (Ms. Elliot) had no option but to prove the Will in solemn form.
Pursuant to the Civil Procedure Rules (England and Wales) (“CPR”), on a proceeding proving a will in solemn form, the Objector (in this case Ms. Simmonds) can effectively do nothing but insist that the executor attend at trial and prove the Will. Moreover, Ms. Simmonds (wrongfully, as it turned out) assumed that she was immunized against costs of her actions by part 57.78(5)(b) of the CPR which provides that:
(b) If a defendant [i.e. Objector] gives such a notice [i.e. a Notice of Appearance], the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the Will.
At the conclusion of the trial, substantial costs had been incurred by Ms. Elliot who propounded the Will. Ms. Elliot made an application for costs, arguing that Ms. Simmonds acted unreasonably by passively placing the burden on Ms. Elliot to prove the Will notwithstanding that Ms. Simmonds had been in possession of all relevant evidence in advance of the proceeding (which supported the will’s validity), adduced no witnesses or medical evidence to the testator’s capacity, and acted obstructively in the proceedings. As such, the judge agreed with Ms. Elliot and ordered precedent setting costs of GBP65,000 against Ms. Simmonds.
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