The claimant had challenged the last will of the deceased dated 13 November 2006 (the deceased had died on 19 October 2008) on the bases of (1) lack of testamentary capacity, (2) want of knowledge and approval and (3) undue influence. The claimant failed on all those bases. The decision of Morgan J can be found at  EWHC 1616 (Ch). On the issue of costs the claimant contended that there should be no order as to costs up to and including 26 September 2010 and thereafter that she should pay the defendant’s costs on the standard basis such liability not to be enforced without the leave of the court. The claimant was in receipt of public funding from 2 February 2010 on the basis that she was acting reasonably in investigating the matter and challenging the will on all three grounds until she had received sufficient evidence for her to decide whether or not to pursue matters and to do so at her own risk. She argued that this point arrived following the exchange of witness statements and following further time for her to read and consider those statements.
The defendant contended that the claimant should pay his costs of the claim, to be assessed on the standard basis and that there should be no restriction on the enforcement of the costs order insofar as it related to the period before which the claimant secured public funding but that the order in respect of costs after that date should not be enforceable without leave of the court. The defendant argued that costs should generally follow the event when there is an unsuccessful allegation of undue influence made and that by January 2010 the claimant had already been given sufficient evidence on the question of testamentary capacity and want of knowledge and approval which ought to have satisfied her that it was no longer reasonable to require an investigation of the facts.
- (1) With regard to the claims based on testamentary capacity and want of knowledge and approval, taking into account the following factors:
- a. The date of the will and the date of death.
- b. In November 2008 the claimant wrote requesting information from the will draftsmen and this was provided in December 2008.
- c. In mid-February 2009 the claimant obtained a complete set of the deceased’s medical notes.
- d. When the defendant sought to warn off the caveat the claimant entered an appearance relying on the allegation of undue influence.
- e. Prior to June 2009 the claimant obtained a file in relation to an earlier attempt by the deceased to make a will.
- f. On 10 June 2009 the claimant sent a letter before claim and on 8 January 2010 the defendant’s solicitor replied to the protocol letter including a report dated 24 September 2009 by a doctor which discussed not only the medical evidence but also referred to three witness statement signed in July 2009. This letter gave the claimant until 22 January 2010 to confirm whether she intended to proceed.
- g. On 12 January 2010 the claimant asked for copies of the witness statement referred to in Dr Campbell’s report and on 15 January 2010 that request was declined.
- h. The Claim Form was issued on 4 February 2010 and a Defence was served on 2 March 2010.
- i. Witness statements were exchanged on 25 August 2010.
- j. At trial the defendant was found to be a reliable witness but that caution had to be taken in respect of the claimant’s evidence and in some respects that evidence was not accepted.
The time when it was no longer reasonable for the claimant to put forward a challenge on these grounds came not long (three weeks) after the defendant’s letter dated 8 January 2010, Spiers applied.
- (2) As regards the challenge based on the allegation of undue influence the defendant should not be left to bear his own costs of clearing his name, Re Good  WTLR 801 followed.
- (3) From 29 January 2010 the claimant should pay the defendant’s costs on the standard basis but that from 2 February 2010 the costs order was subject to the restriction that the order should not be enforced without leave of the court. There should also be a public funding assessment.