Will: Solicitors did not serve in time
A daughter seeking to propound a copy of her deceased mother’s will has been “let down” by her solicitors in failing to comply with an unless order to issue proceedings, the High Court has ruled.
Master Teverson refused [1] Tetla Yvonne Phipps relief from sanctions, saying her solicitors – south-east London firm Austen Jones – should have known that proceedings in the Rolls Building were not served by the court.
“I recognise that the effect of this judgment is that the claimant has lost the opportunity to propound the will. The terms of the unless order made clear that was the sanction. In my view in all the circumstances the sanction was proportionate.”
Ms Phipps’ mother died in May 2020. She found a copy of the will, making her the sole beneficiary, while going through her mother’s emails.
In the wake of delays by Austen Jones in preparing an application to have a copy of the will admitted to probate, the defendant – the deceased’s widower – applied for an order for a grant of probate as if the will were invalid.
This was on the basis that the claimant had not proceeded with reasonable diligence to propound the will since entering an appearance.
In early 2023, District Registrar Whitby ordered that, unless Ms Phipps issued and served the action within 28 days, the grant would be issued.
On 2 March, the day before the deadline, the claim form, particulars of claim and a witness statement were filed with the court, and an unsealed copy emailed to the defendant’s solicitors for information, with Austen Jones saying it was for the court serve the papers.
The defendant’s solicitor raised the lack of service in June and then again July after receiving no reply, noting that by now the four-month window to serve the claim had passed.
In late July, Austen Jones purported to serve the documents by fax and then applied for relief from sanctions.
Master Teverson, sitting in retirement, ruled that it was not possible to classify the breach “as anything other than serious and significant”, while no good reason had been shown for the default.
By waiting until the day before the deadline, the claimant had left insufficient time for service, and in any event, Austen Jones held the “mistaken belief that the claim form would be served by the court”. This could not be a good reason for the default.
The master continued that the claimant’s solicitor should not have waited until 11 March before telephoning the court, or another two months before calling again. “He most certainly should not have waited four months before sending any written communication to the court by which time the time for service of the claim form under CPR r. 7.5(1) had expired.”
He rejected the submission that the defendant’s solicitors could have been more collaborative.
“Having reviewed the correspondence, I do not think it can be said that they acted in an obstructive manner. They were in my view entitled to wait for the claim form and other documents to be served.
“I do not consider they were under any duty to warn the claimant’s solicitors that the time for service of the claim form would expire at midnight on 3 July 2023.”
On behalf of the claimant, it was submitted that the court should take into account that the failure to comply with the unless order was the fault her solicitors.
Master Teverson said: “The effect of granting the claimant relief from sanctions now would be to drive a coach and horses through the unless order. The sanction imposed by the unless order was in my view proportionate given the time the claimant had had in which to propound the will…
“I am afraid that the claimant has been let down by her solicitors. They should have known that in the Rolls Building jurisdictions proceedings are not served by the court. That has been the position since 1 October 2017.
“An application for relief from sanctions should have been made much sooner. Further, and critically, 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.”