A recent High Court decision highlights the complex realities of challenging a will, especially when international elements and financial dependency claims are involved. In Natthachai v Burrage, the claimant, based in Thailand, is seeking a share of the estate of the late Roger Burrage, who she claims was her partner. His 2006 English will left his entire estate, valued at over £420,000, to his sons, Simon and David Burrage, the defendants in this case. Ms Natthachai contends she is entitled to one-third of the estate, with further disputed assets located in Thailand and potentially Singapore.
Her case includes several claims:
· She is entitled to provision under the Inheritance (Provision for Family and Dependants) Act 1975 as someone financially maintained by the deceased;
· Repayment of a £194,000 loan;
· A proprietary estoppel claim asserting a beneficial interest in the estate;
· An application to remove the defendants as executors and appoint herself as administrator.
However, a critical hurdle emerged as the defendants sought security for costs. This is an interim remedy within the Civil Procedure Rules, intended to ensure that a claimant can cover the other party’s legal costs if their case fails. This can be evoked where the claimant is located in another country, or there are other specified reasons why it is suspected that they might not be able to cover costs. However, it can be a bar to justice if a claimant has a legitimate claim, but is without funds upfront to show that they could pay costs. In this case, the Court was concerned both that the claimant could provide only £30,000 by way of security, and that her financial disclosures were inconsistent and incomplete. However, the judge ultimately concluded that her claim appears to have merit and ordered the whole £30,000 in security as a minimum, with the total to be revisited later. This is a reminder to practitioners and claimants alike that: – Financial transparency is essential. – Overseas claimants may be required to provide security for costs. – Strong evidence can be the key to success.
It also highlights how important it is to obtain qualified legal advice at an early stage, so that evidence can be considered, a case thoroughly planned, and strategies determined.
Crucially, litigation is a risky business!
Rachel Waller is a partner at Excello and a specialist in Contentious Probate disputes such as this. If you need advice or assistance on any of the issues raised in this article, or in relation to wider Trusts and Estate disputes, please contact Rachel Waller on rwaller@excellolaw.co.uk