The claimant ‘C’ and second defendant ‘D2’ were two of the children of the deceased, who appeared to have died intestate in 2012. They appointed a probate company ‘D1’ to administer the estate, who took a grant under a power of attorney from D2 in 2013. By 2016, the estate had not been administered and C believed D2 was living in the deceased’s property, so C issued a claim to remove Ds as administrators and for D2 to pay an occupation rent. D1 consented to be removed, but on terms that its fees would be paid. D2 agreed to D1 being removed, but not to her own removal or to payment of occupation rent; instead she sought a declaration that she had a beneficial interest in the property and made a claim under the 1975 Act.
A will dated 1974 was then found by D2’s solicitor. This made D2 sole executor and residuary beneficiary. D2 revoked the power of attorney and applied to revoke the grant to D1 and take a grant in its place. C initially sought contend that the 1974 will had been revoked, but then accepted the will’s validity. D1 sought payment of its fees before the grant was revoked. In 2017, the court revoked the grant (without providing for D1’s fees), and dismissed the claim for removal.
On argument as to costs:
… C applied for his costs: half of the costs before the revocation of the grant from D1, relying on D1’s lack of efficiency as justifying his claim being brought, and D1’s insistence on receiving his fees, and the remainder from D2.
… D1 sought an order that C pay both Ds’ costs, save for a percentage of the costs argument.
… D2 sought an order that C and D1 should pay her costs until the will was found in 2016, and that C should pay her costs thereafter, on the basis that she had been successful.
Ordering (i) both Ds each to pay 50% of C’s costs of the claim up to the discovery of the will; (ii) D1 pay 50% of the costs of C and D2 from discovery of the will to removal of D1, with the other 50% coming from the estate; (iii) the costs of C and D2 from the removal of D1 to the end of the will challenge be paid from the estate; (iv) D1 and D2 each pay 50% of C’s costs of the costs argument.
- 1) C’s claim was justified on grounds of D1’s inactivity, and his pre-action correspondence was sufficiently clear to allow D1 to know what was being asked. D2 had contributed to the claim by misleading D1 as to her occupation of the property.
- 2) D1’s liability for costs continued until it was removed, and also applied to the costs of the costs argument, because D1 had not consented to be removed save on terms that there was no order as to costs.
- 3) Although the point did not have to be determined, C was likely to have been appointed as substitute personal administrator if the will had not been discovered, and so his claim was justified, even though D2 had in the event obtained the relief she sought.
- 4) However, the fact that the will had not been discovered sooner was the responsibility of the deceased, and so the costs were paid from the estate. C was allowed a reasonable time to investigate the validity of the will after its discovery, so the costs of the next 6 months also came from the estate.
- 5) C was the successful party in relation to costs, both Ds having sought and failed to obtain costs orders against him.