Probate claims – the rules still apply

Civil litigation must be conducted according to the procedures and time limits set out in the Civil Procedure Rules. These rules, which are regularly updated, make up a procedural code whose overriding aim is to enable the courts to deal with cases justly. The rules set out in detail how a case is to be conducted in the civil courts in England and Wales and all parties to litigation, whether they are represented by solicitors or not, are expected to comply with them.

Parties who do not comply with the rules can have sanctions imposed on them by the court. The court has a wide discretion when it comes to sanctions, and the consequences of non compliance can be severe – a party’s case could be struck out, or judgment given in another party’s favour. In probate claims the consequences of failing to comply with the Civil Procedure Rules and court orders can be particularly serious, as was the case in the recently decided Phipps v Goulbourne [2024]. In that case the court made clear that all cases must be conducted in accordance with the relevant rules and that probate claims are no exception.

Background

The case concerned an application made by the claimant, Mrs Phipps, in the High Court for relief from sanctions in relation to a probate claim she had issued in the estate of her deceased mother who had died in May 2020.

The claimant sought to propound a copy of a will made by the deceased as, following her death, the original could not be found. In 2020, the claimant had discovered the copy will when going through the deceased’s emails. Under the copy will, the claimant was appointed the sole executrix and beneficiary of the deceased’s estate. 

The defendant, the widower of the deceased, entered a Caveat in February 2021 to prevent the claimant from seeking a grant of probate in respect of the copy will, and the claimant later entered an Appearance in June 2022. Some correspondence was exchanged between solicitors acting for the parties but having heard nothing from the claimant or her solicitor since September 2022, the defendant’s solicitors applied by summons for an order for a grant as if the will were invalid. The grounds on which the order was sought were that since entering an Appearance, the claimant had not proceeded with reasonable diligence to propound the will.

The summons was dealt with in January 2023 at the district Probate Registry in Leeds. It was ordered that unless the claimant issued and served a probate action in the High Court to propound the will she wished to rely on within 28 days, a grant would be issued as if the will was invalid (“the Unless Order”).

The time for compliance with the Unless Order expired on 3 March 2023. The claimant’s solicitors filed her claim at court on 2 March and sent an unsealed copy to the defendant’s solicitors by email and fax on 2 March. There was evidence before the court in this case that the solicitor believed that the court would serve the claim once it was sealed.

There was some limited further correspondence between the solicitors after March 2023, but at the end of June 2023, the defendant’s solicitors flagged that the claimant’s sealed claim form still had not been served, in breach of the Unless Order. Thereafter, the sealed claim still had not been served by 2 July 2023, being four months after the claim was issued. The Civil Procedure Rules state that a claim form must be served on a defendant within four months of the date it is issued. Because a sealed claim form had not been served on the defendant in compliance with the rules, the claimant was required to file an application for relief from sanctions, which she did on 28 July 2023.

The application sought relief from the sanction imposed by the Unless Order, because the claimant’s failure to issue and validly serve her probate action by 3 March 2023 meant that a grant would be issued as if the will on which the claimant wished to rely was invalid. Yes, her solicitors had issued the claim and sent an unsealed copy to the defendant, but the legal position is clear that service of an unsealed claim form does not constitute valid service.

The decision

In order to consider whether to grant the relief sought by the claimant, the Master looked first at the seriousness and significance of the breach committed by the claimant. The Master found that the fact that the defendant was aware of the claim and the grounds for it (having been sent an unsealed copy) did not make the delay in service insignificant, because until service of the claim form the proceedings were effectively on hold. The Master’s view was that the breach was serious and significant and it was a breach that was not promptly remedied.

The Master then looked at whether there was a good reason for the breach. The Master felt that there was not – the solicitor’s mistaken belief that the claim form would be served by the court could not be relied on as a good reason and by issuing the claim form on 2 March they had left insufficient time for service in any event. The court guidance is clear that unless the court orders otherwise, the claim should be served by the parties and not the court.

Finally, taking into account the circumstances of the case, the Master considered how to deal justly with the application. The claimant submitted that the effect of not granting relief from sanctions would be extremely serious as it would prevent her from seeking to propound the will. But the Master reiterated that particular weight must be given to the need for litigation to be conducted efficiently and the need to enforce compliance with rules, practice directions and orders.

The breach committed by the claimant was viewed by the Master in the light of the full background of the case – the deceased had died in March 2020 and by the date of the Unless Order it was more than three and a half years since her death. The effect, the Master said, of the Unless Order was to give the claimant a final opportunity in which to issue and serve a claim to propound the will. There was only partial compliance with the Unless Order and the Master was critical of the claimant’s solicitor’s conduct in their failure to take timely steps to remedy the breach and make enquiries with the court as to the position with the sealed claim and service. He also found that the solicitor should have made the application for relief from sanctions well before the expiry of the claim form. The expiry of the claim form was, the Master said, particularly serious. The effect of giving relief from sanctions now would “be to drive a coach and horses through the Unless Order”. 

The Master’s view was that the claimant had ample time to propound the will, even in the period before the Unless Order was made. He made clear that the fact that this was a probate claim did not result in any special rule being applied. He noted that the court expected all claims, including probate claims, to be conducted efficiently and in accordance with the rules, practice directions and orders.

The Master, therefore, concluded that in all the circumstances, there was no basis on which the court could grant the claimant relief from sanctions without completely undermining the effect of the Unless Order. The Master recognised that the effect of his judgment was that the claimant had lost the opportunity to propound the will, but he felt that the claimant had been “let down by her solicitors”. He said that they should have known that the claim form would not be served by the court (which had been the position since 2017) and that an application for relief from sanctions should have been made much sooner. Critically, he said, the validity of the claim form should not have been allowed to expire without any application being made to the court to preserve its validity. For those reasons, the claimant’s application for relief from sanctions was refused.

Conclusion

This case is a clear reminder that probate claims, like all civil claims, must be managed effectively in line with the relevant court rules and procedures. Probate claims are not to be treated any differently from any other type of claim, and the sanctions for noncompliance can be severe. Failure to follow the rules can lead to serious consequences, which may, in turn, give rise to a negligence claim where a legal representative has been responsible for the breach. However, it is, of course, far better not to fall foul of any procedural requirements in the first place and parties and their representatives must always be mindful of the need to manage probate claims efficiently and diligently in accordance with the rules.

Further information

If you have any questions or concerns about the topics raised in this blog, please contact Kate Salter. 

ABOUT THE AUTHOR 

Kate Salter is a Senior Associate in the Dispute Resolution team with a wide range of litigation experience, and with particular expertise in Wills, Trusts and Inheritance Disputes.