A firm must pay 60% of the costs of a failed challenge to a will it drafted, a court has ruled. In Steven Leslie Pead v Prostate Cancer UK & Ors the court refused an attempt to rectify clause 11 of the will referring to the residuary estate. Relatives of the late James Murray McKay argued that McKay had intended the residue to go solely to family members rather than be shared with charities.
However a subsequent costs judgment ruled that GWCA Solicitors Limited, the successor practice to the will-drafter BBMW Limited, should bear parts of the cost of the claim.
Master Teverson, sitting in retirement, said that though the claim failed, it was a ‘reasonable one to bring’. He added: ‘A competent solicitor would have appreciated the need to confirm the deceased understood the effect of clause 11 was to include the charities within the distribution of his residuary estate and the need to ascertain what proportion of his residuary estate the deceased intended each of the charities to receive.’
However the judge found it would not be fair for the firm to pay all the claimant’s costs. ‘I do not consider it can fairly be said that BBMW was solely responsible for the whole problem,’ he said. However it had missed the opportunity to clarify the will. ‘It can further be said that BBMW’s responses to the claim raised evidential questions which may reasonably have encouraged the pursuit of the rectification claim.’
He added that there had been ‘serious shortcomings in the way that the deceased’s instructions were taken and recorded’ which gave rise to the claims.
Finding the firm should pay 60% of all parties’ costs, the judge highlighted GWCA’s acceptance that it should pay costs as a result of the ambiguous drafting of clause 11; and that in bringing the claim ‘the claimant must be taken to have assumed the risk that if the claim failed his courts would not be recoverable from the estate as a whole but wither from his own or, with their agreement, his and the family’s share of the estate’.
