Analysis
On 7 April 2016 judgment was delivered pronouncing for the force and validity of the will dated 1 February 2012 (2012 will) of Kenneth William Jordan (Mr Jordan) in solemn form of law and ordering that a caveat entered by the first defendant in respect of his estate cease to have effect. The normal rule of costs is that costs follow the event. However, the Court has discretion to make a different order, taking into account, for example, the conduct of the parties. In a contentious probate claim, there are also specific exceptions to the normal rule arising under case law and under the Civil Procedure Rules. In this case, the first defendant had given notice in her defence pursuant to CPR 57.7(5) that she did not raise any positive case but insisted on the 2012 will being proved in solemn form and that purpose invoked her right to cross-examine the attesting witnesses. It was also provided that, if a defendant gave such a notice, the Court would not make an order for costs against him unless it considered that there was no reasonable ground for opposing the will.
Held (ordering the first defendant to pay the claimant’s costs from 3 June 2013):
If the first defendant had reasonable grounds for opposing the 2012 will, then no order for costs should be made and each party would bear his own costs. In this case, the first defendant did not have a reasonable ground for opposing the 2012 will and, therefore, she should bear the claimant’s costs though only from the date on which she, with her advisers, had sufficient material on which to form a view about whether there was any reasonable ground to oppose the 2012 will. This was consistent with the principle that the judge in a probate action was concerned in an inquisitorial capacity to seek the truth as to what was indeed the testator’s last true testament and accordingly was not bound by the manoeuvres of the parties. Once, however, a defendant was in a position (as in this case), following disclosure, to make a proper assessment of the reasonableness or otherwise of opposing the will, he or she should be at risk for costs incurred from that date. With regard to the second defendant’s costs, as executor he had maintained a position of neutrality throughout and, therefore, it was appropriate that no order for costs should be made as that would not affect any entitlement he had to recover his costs of the proceedings out of the estate of Mr Jordan.
JUDGMENT MURRAY J: [1] On 7 April 2016 I handed down my judgment, in which I gave my reasons for pronouncing for the force and validity of the will dated 1 February 2012 of Mr Kenneth William Jordan in solemn form of law and for ordering that a caveat entered by Ms Ruth Simmonds in …Continue reading "Elliott v Simmonds (costs) [2016] EWHC 962 (Ch)"