Posted: Thursday, 10 May 2018 @ 14:04
Let us be blunt about it, many people are comfortable about the thought of taking/being involved in legal action but less comfortable about paying legal costs of their lawyer and/or possibly being exposed to paying some one else's legal costs if they lose.
This scenario typically happens after someone has entered a caveat.
You enter caveat and then you face the threat of legal action from some lawyer of the opponent with the prospect of some whopping legal bill if you carry on with your apparently totally unreasonable position.
How do you deal with this?
One option is instead of raising a will challenge as a defence, is you raise a passive defence in accordance with The Civil Procedure Rules, namely Part 57 of the Civil Procedure Rules which says:
r.57.7(5) (a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.
The holy grail of no order of costs even if you lose.
In the case of Elliott v.Simmonds (2016) the passive defence was considered..
In this case despite using the passive defence, there was no reasonable ground for opposing the will or for going to the time and expense of cross-examining the Claimant and it was ordered that the first defendant ought to bear a good chunk of legal costs being the date when he felt that she ought to have known that her claim was bound to fail.
Thus while the passive defence can be an effective tool for the cautious litigant ,it does not provide total protection for costs.
It is no panacea.
So, handle with care.
Nevertheless I quite like it as a defence and am advising some individuals on how to use it but you have some kind of case to use and you have to have skill in cross examining the opposing party who is trying to prove the will.