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Contested Wills: Wharton Vs Bancroft

A High Court Judge has awarded costs on an indemnity basis against three adult daughters who contested their late father’s death-bed will because he believed that their case was so factually and legally weak. Indemnity costs awards involve the paying party being ordered to pay all the receiving party’s reasonable legal costs as opposed to a proportion of them. Such awards are generally only made where the Court believes that the party against whom the award is made has acted unreasonably in initiating or conducting litigation. The award acts as a warning to litigants and practitioners not to initiate legal proceedings without ensuring that there is a proper basis for doing so and to conduct litigation in a proportionate and reasonable manner. For further information on costs awards speak to Julian Johnstone, Head of Druces’ Litigation & Dispute Resolution team.

In the substantive judgment on the same case, the High Court also described as misplaced criticism of the solicitor who prepared the death-bed will without obtaining medical advice confirming the testator’s mental capacity to make it. The High Court ruled that a medical attendant willing to advise on mental capacity could not always be found at short notice and went on to describe the steps that solicitors should take in ensuring that a testator’s mental capacity was established before completing a will in such circumstances. A full briefing note on this issue will be posted on our website shortly.