Brennan v Prior and Others [2015] is a sobering tale of the danger of not obtaining the right advice at the right time when seeking to challenge the validity of a Will. Or perhaps worse still, getting no advice and ploughing on without fully appreciating the financial risks.
Brennan v Prior and Others
Case background
Francois Devillebichot died on 3 March 2011 leaving a homemade Will which he executed in hospital a few weeks before his death.
The first and second defendants in the case were both witnesses to the Will and its executor and substitute executor respectively.
The Will was drawn up by one of Francois’s sisters and gave his daughter and the claimant, Chloe Brennan, a legacy of £100,000. He gave one of his sisters a flat in France and he divided his residuary estate between his siblings (the third to sixth defendants) equally.
Legal proceedings
Chloe was Francois’ only child and challenged the Will on a number of grounds, including lack of capacity, fraud and undue influence on the part of the defendants.
If successful, the Will would be declared invalid and as Francois had made no earlier Will and she was his only child, Chloe would inherit the entire Estate worth £630,000.
Chloe represented herself throughout the proceedings without the assistance of lawyers. However Chloe’s claim failed and although the circumstances were “suspicious”, the Judge found that on the balance of probabilities, Francois was likely to have known and approved the contents of the Will.
And so the usual order for costs followed (the loser pays) but the Judge did not make clear whether it was limited to the value of Chloe’s inheritance (£100,000).
The executors and beneficiaries then sought indemnity costs against Chloe as she had made personal allegations of misconduct against all of them. The executors’ costs alone stood at £87,000, the beneficiaries’ costs were unspecified but were said to be ‘considerably more’.
Although the executors’ costs would be met from Chloe’s legacy, the beneficiaries returned to Court and Chloe has now been ordered to pay their costs from her own assets, which may result in the sale of her own home. It was the worst possible outcome.
Comment
The case of Brennan v Prior and Others underlines the importance of taking advice if a Will validity claim is contemplated. Such claims can be complex and naturally require detailed consideration of the law and the necessary evidence to prove or disprove a case.
In one sense, Chloe made it more likely that she would face a robust defence because the beneficiaries knew that even if they lost – and there was real chance of that as the judge did note the suspicious circumstances – they would face only nominal costs from Chloe.
The case also reinforces the importance of engaging solicitors to prepare a will for a seriously ill testator, especially where there are likely to be disappointed beneficiaries.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.