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Lost challenge to will costs litigant dearly

Thursday, 29 October, 2015

A Berkshire woman who lost her legal challenge to her natural father's will may have to pay legal costs far higher than the amount she was left in the will.

Chloe Brennan is the illegitimate daughter of Francois Devillebichot, and is his only issue. Her father died in March 2011, when it emerged that two weeks earlier he had executed a will leaving the bulk of his GBP630,000 estate to his four siblings. He left Chloe a legacy of GBP100,000.

Mrs Brennan brought an action claiming that two of her aunts had, with the aid of the two executors, used undue influence to make Devillebichot sign a will they had drafted themselves using a pack bought from a stationery shop. She also alleged lack of knowledge and approval by the testator. Appearing without a legal advisor, she claimed that her father had been financially generous to her for most of his life and had reassured her that she would inherit his estate.

Although the judge, Mark Herbert QC TEP, agreed with Mrs Brennan that the circumstances of the execution were 'undoubtedly suspicious', he decided against her claim on the balance of probabilities (Brennan v Prior, 2013 EWHC 2867 Ch). The will was admitted to probate.

The executors and beneficiaries then sought indemnity costs against Mrs Brennan, rather than simply having their costs paid out of the estate, as she had made personal allegations of misconduct against all of them. The executors' costs at that point were about GBP87,000; the beneficiaries' costs were unspecified, but were said to be 'considerably more'. Some of this bill, but not all, could evidently be paid from the legacy left to Mrs Brennan.

Mark Herbert QC awarded a substantial part of the costs against Mrs Brennan, to be paid in the first instance from the legacy. However he did not specify whether her liability was limited to the amount of the legacy she had been left from the estate. In any case, Mrs Brennan told the court she would not be able to pay the rest of the costs, or even the interim payment of GBP50,000 ordered by the judge, out of her own resources.

The beneficiaries subsequently returned to court to resolve the matter, and the England & Wales High Court has now ruled in their favour. Mr Justice Snowden declared that Mrs Brennan's personal liability for the other beneficiaries' costs is not to be limited to the amount of her own GBP100,000 legacy (Brennan v Prior, 2015 EWHC 3082 Ch). Justice Snowden commented on the possibility that Mrs Brennan may have to 'sell her other assets (such as her home) ' to pay the bill.

Sources