Nick Stotesbury and Lauren Coote from the Contentious Trusts and Probate Team successfully acted for the Defendant in Phipps v Goulbourne in resisting the Claimant’s application for “relief from sanctions” following breach of a court order. The case is an important reminder of the importance of complying with court orders. As a consequence of missing crucial deadlines set out in an “unless order”, the Claimant has now lost her chance to propound a copy of a Will made by her mother.
Facts of the case
Following the death of her mother in May 2020, the Claimant sought to propound a copy of a Will made by her mother, under which she was the sole beneficiary and executrix. The original Will could not be found following the deceased’s death. The deceased’s husband, represented by Birketts, opposed the claim and is the Defendant to the proceedings.
Although the Claimant had provided a photograph of the Will to the Defendant in June 2020, she failed to propound the Will and apply for probate. As a result of the Claimant’s inaction, which had prevented the administration of the deceased’s estate for a number of years, the Defendant applied for an order of the Probate Registry in November 2022 for a grant as if the Will were invalid on the basis that the Claimant had not proceeded with reasonable diligence to propound the Will.
The Court made an “unless order” on 23 January 2023, requiring the Claimant to issue and serve a claim to propound the Will within 28 days, failing which a grant would be issued to the Defendant as if the deceased had died intestate and the Will was invalid.
The Claimant’s solicitor filed a claim form shortly before the deadline. However, despite the clear wording in the order, the Claimant failed to serve the claim form by the deadline and was therefore in breach of the order. This was due to the Claimant’s solicitor’s mistaken belief that the court would be responsible for service of the claim form.
The Claimant subsequently made an application for “relief from sanctions”, more than four months after the deadline for compliance with the order had expired. Although the Claimant provided a witness statement saying that she faced losing her mother’s house if relief from sanctions was not granted, the judge held that this could not be a determinative consideration that should affect his judgement. The judge concluded that the breach was “serious and significant” and consequently denied relief from sanctions. As a result, the Claimant is prevented from pursuing a probate claim to prove a copy of her late mother’s Will.
The Birketts view
This case is a vital reminder of the importance of complying with court orders and a warning of just how serious the consequences can be if an order is breached. An “unless order”, as made in this case, should be seen as the court offering a party a final chance to comply and should not be ignored.
In his judgment, Master Teveson commented that the Claimant had been “let down” by her solicitors, who should have known that it was their responsibility to serve the claim form rather than the court’s. The judge was also critical of the delay in applying for relief from sanctions until almost four months after the deadline for compliance, in which time the validity of the Claimant’s claim form had expired.
Whilst the judge acknowledged the personal impact that denying relief would have on the Claimant, this was not enough to change his view as to the seriousness of the breach. The judge also made clear that the wider context was an important consideration, particularly the fact that the Claimant had already had ample time in which to propound the Will. The deadline provided by the unless order was a final opportunity for her to do so, more than three years after her mother’s death. The judge reiterated that the court expects all claims, including probate claims, to be conducted efficiently and in accordance with the rules, practice directions and court orders.
This article was written by Nick Stotesbury, Legal Director. For any enquiries, please contact Nick or another member of our team on 01473 406386 or at firstname.lastname@example.org.