Wednesday, 13 March 2013

A family inheritance wasted on litigation

The recent case of Hawes v Burgess [2013] EWCA Civ 74 illustrates the high financial cost of litigation relating to wills.  The Court of Appeal upheld the trial judge's finding that the deceased's last will, in which the testatrix cut out her her son, was invalid and that an earlier will, by which she left her estate equally between her three children, was valid.

As for costs - this is what Mummery LJ had to say:

"The cost of contesting the 2007 Will is a calamity for this family in every way. By the standards of a present day probate case the Deceased's estate is modest, less than £200,000. We were told in general terms that efforts to achieve a family compromise came to nothing, though, of course, details of the "without prejudice" negotiations have not been disclosed. The failed negotiations mean that the estate will become, if it has not already become, worthless. A 6 day trial with 26 witnesses does not come cheap. Now there is this appeal. It may be recalled that the foggy family law suit in Jarndyce v. Jarndyce dragged on before the Lord Chancellor for generations until nothing was left for the parties to take. The Civil Procedure Rules and the efforts of legal advisers have not dissuaded these parties from following a course leading to the dissipation of the whole of the deceased's estate in costs and legal fees, which has happened faster than under the dilatory procedures of the unreformed Court of Chancery in the Jarndyce days."

Jarndyce was, of course, a fictional case in Charles Dickens' novel Bleak House.   Dickens, a keen
observer of events of his day, did not spare the lawyers or the courts from his sometimes acerbic writing.

In Hawes v Burgess the Court of Appeal had doubts about the trial judge's conclusion that the deceased had lacked capacity to make a will but the court also held that there was sufficient evidence to justify the judge's conclusion relating to want of knowledge and approval.   The deceased was held to have failed to comprehend and appreciate the claims to which she ought to give effect - (limb 3 of the Banks v Goodfellow test - see para 11 of the Hawes v Burgess judgment).

The case raises a good point relating to expert evidence regarding medical reasons why the deceased failed to make provision for a child in a will.  In this case, the opinion of an expert had been relied on even though the expert had never examined the deceased.   This did not impress the Court of Appeal.   The courts aid - 'Little weight could be put on the evidence of Professor Jacoby who never saw the deceased.'

Earlier post - 'Making a will?  See a competent expert.' - Law and Lawyers 29th September 2010.


  1. Utterly ruinious suits.

    By co-incidence I read another, on similar lines from yesterday:

    The opening paragraph sets the scene, the amount in dispute and, of course that costs appear to equal this: The effect of the disputed will was therefore to give Nick the whole, rather than half of, the value of the house, and to deprive Bill of his half. On current perceived values, a half share is worth between about £110,000 and £160,000. Because the two brothers are at loggerheads it has required a regrettable (but apparently unavoidable) four-day probate action to determine the fate of that amount of money. The aggregate costs of the action are thought to approach the lower of those two figures.


    I have warned clients, approaching various types of litigation to think again, and then again, and then again before proceeding.

  2. There is an old joke about two silks leaving court after a probate action settles and one says to the other "It breaks my heart to see a good estate wasted on the beneficiaries".

    Libellous, of course.

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