Court declares 2006 will valid despite existence of 2013 version

The High Court has declared that a will that was written in 2006 is valid, after finding that a later 2013 document could not stand. The ruling also set out how legal costs should be divided in the dispute.

The case concerned the estate of a woman who had made more than one will. In 2013 she signed a new version, leaving her property in a different way from the 2006 will. Following her death, relatives disagreed over which document should take effect.

The later 2013 will was challenged on the basis that the woman lacked the mental capacity to make it. Two medical experts were asked to consider her condition and ultimately agreed she was not capable of making a valid will at that time.

The claimant, who stood to inherit most under the 2013 document, eventually accepted that it was invalid and stopped pursuing the claim. However, that still left the court to decide whether to give effect to the 2006 will and to settle the question of costs.

The dispute was heard in the High Court’s Chancery Division before His Honour Judge Berkley, sitting as a High Court judge.

On costs, the judge explained that the usual rule is for the losing party to pay. There are two recognised exceptions: where the testator has caused the dispute, or where it was reasonable to investigate the circumstances. In those cases, costs can come from the estate itself.

Judge Berkley decided that up until February 2023 it had been reasonable to investigate the 2013 will, so no order for costs would be made for that period. But from that point onwards, once the medical evidence was clear, the litigation became “hostile”. The claimant was ordered to pay the defendants’ costs from then on. A request for indemnity costs was rejected.

The judgment highlights the risks of pursuing probate disputes once expert evidence has settled the question of capacity. While the court recognised that early investigation was justified, it emphasised that continuing the fight after the position was clear would leave the losing party liable for costs.

In circumstances like these, if you’re concerned about the validity of a will, it might be helpful to consider mediation and other dispute resolution procedures to avoid the cost of going to court.

Please contact us if you would like more information about the issues raised in this article or any aspect of wills and probate.