Richefond and others v Dillon and others: Contesting the will of an illiterate testator and issues on costs

A recent High Court case has considered the validity of a will of an illiterate testator as well as the position on costs where executors are found not to be acting in the best interests of the estate.

The background

Kenneth Grizzle (the Deceased) left a will leaving his estate to his second wife. The Deceased’s children were of the view that they had always been told that their stepmother would continue to live in the family home. However, it would ultimately pass to them when she passed away. Issues arose when the Deceased’s will did not reflect this position.

A claim to prove the validity of the will was brought by the stepmother and the executors of the estate and defended by the Deceased’s three eldest children on the basis that they claimed that the Deceased could not know and approve his will because he was illiterate.

The law

One of the criteria for a will to be valid is that a person must have knowledge of and approve the content of their will. If someone possesses capacity and their executed will complies with the legal formalities, then there is a legal presumption that they knew and approved the content of their will.

However, where there are suspicious circumstances the court can request positive evidence of knowledge and approval. One circumstance is where the person making the will (known as the testator) is deaf, blind or illiterate. For an illiterate testator, this is because they cannot read their will meaning it must be clear that the will was read to them, to enable them to approve it.

The case

In this case, the court considered the issue of an illiterate testator and whether the Deceased had the requisite knowledge and approval for the will to be valid. It held that the Deceased would not have been able to understand the will and the legal consequences without assistance and no evidence was found that the will was read to the Deceased. The court ultimately ruled that the will was partially valid, with the gift of the residue failing as the Deceased did not know and approve that aspect.

The impact of the ruling is that the gift of the residuary estate, previously left to the stepmother, was invalid, so the Deceased died partially “intestate”. His children will now receive an equal share of the residue.

The costs position

If a dispute over knowledge and approval and the validity of a will arises, there are also considerations that need to be had regarding costs and which party bears these. The usual position is that the unsuccessful party will bear their own costs as well as the costs of the successful party. However, the court does have a discretion to make an alternative order on costs, often as a result of the conduct of any parties, any offers made and the evidence to support any claims.

Regarding the costs position in this case, the court exercised its discretion under rule 44.2(1) of the Civil Procedure Rules (the rules which govern litigation of this type in England and Wales) to vary the usual position. The exceptions to the usual costs rules were also considered by the judge, including whether the Deceased was the cause of the litigation and whether there were circumstances prompting a reasonable investigation.

The court reached the conclusion that the blame here, and as such the cause of the litigation, was not the Deceased but in fact rested with the will writing practice.

The court also considered the role of the executors in the matter, who should have taken a neutral stance and, in which case they would normally be entitled to have their costs met from the estate come what may, but instead were found to have chosen to pursue litigation purely for the benefit of the Deceased’s wife and not in the best interests of the estate.

As a result, the court ordered that each party should bear their own costs. Further, the claimant executors were not entitled to an indemnity for their costs from the estate. Finally, the costs of the Defendants would be borne from the residue of the estate before division.

Lessons to be learned

This case highlights the importance of clear contemporaneous records showing how the terms of a will are explained to someone, whether or not they are illiterate and how they are able to demonstrate an understanding and approval of that will.

It is also a useful lesson for executors and the considerations they must have regarding costs recovery if they are found not to be acting in the best interests of the estate.