Analysis
The first claimant and her co-executors sought to propound a will which was resisted by the first to third defendants. In a previous judgment the Master had determined that the will was valid as to part but the gift of residue to the first claimant failed because the testator did not know and approve of that part in light of his illiteracy and the lack of proper explanation from the will draftsman. The result was that the testator’s home was held on trust for the first claimant’s occupation but the residuary estate passed on the statutory trusts of intestacy between the five defendants.
The court heard submissions as to the incidence of costs. The defendants argued that they had substantially succeeded in challenging the will and the claimant executors should bear all the costs of the proceedings personally. The claimants argued first that they reasonably sought to propound the will as executors and so should be indemnified in respect of costs out of the estate, or alternatively that as the defendants had not obtained the full relief they sought they should not recover their costs.
The issues to be determined were which order should be made as to costs, and whether the executors should be indemnified out of the estate pursuant to CPR 46.3.
Held:
- (1) The starting point in probate claims was that provided in CPR 44.2, ie that the unsuccessful party should pay the successful party’s costs. Spiers v English [1907] identified two exceptions to that general rule in probate cases: (i) where the deceased was ‘really the cause of the litigation’; or (ii) where the circumstances led reasonably to an investigation of the matter, in which case the costs might be ordered to be borne by those who incurred them.
- (2) The first exception did not apply. The cause of the litigation was the will draftsman’s failure to explain to the testator the effect of the gift of residue. He acted as the testator’s agent in that regard and so in that sense the testator was the cause of the litigation, and the claimants would, without more, have been justified in seeking to propound the will. However, the claimants were aware of the testator’s limited understanding of the documents and nevertheless chose to pursue litigation in which the first claimant had an obvious interest. Their actions could not be characterised as those of neutral executors (para 27-31).
- (3) The second exception also did not apply. The circumstances were such as to require investigation, but the investigation required was one pre-action and did not require the issue of proceedings. Despite the defendants raising concerns as to the preparation of the will, the claimants failed pre-action to make full enquiries of the will draftsman and his file and issued proceedings before contacting him and obtaining his evidence (para 32-37). The usual rule in CPR 44.2 would therefore apply.
- (4) There was no duty on an executor to prove a will and, unless one of the exceptions was established, executors who actively sought to propound a will without the court’s prior sanction (which would be unlikely to be given where all beneficiaries are capacitous adults) did so at their own risk as to costs. The first claimant could have brought the proceedings in her personal capacity and the other executors taken a neutral stance. By actively pursuing the claim for the first claimant’s benefit the executors acted for the benefit of one beneficiary, and so would not be entitled to any indemnity out of the estate (para 38-40).
- (5) The defendants were successful, but not in full. There were no relevant offers of settlement nor any conduct which led the court to depart from the usual rule. There would be no order as to costs as between the claimants and the first three defendants, but the defendants’ costs should be paid out of the residue prior to distribution, to avoid the non-contesting defendants obtaining a windfall.
Order accordingly.
JUDGMENT MASTER MCQUAIL: [1] I gave judgment in this probate claim on 6 October 2023. I concluded that the will of Kenneth Grizzle (Kenneth) dated 3 November 2023 (the Will) was valid as to part but, because Kenneth did not know and approve the gift of residue, that gift failed. The result is that Kenneth’s …Continue reading "Richefond & ors v Dillon & ors [2024] WTLR 253"