The applicant had obtained revocation of a grant of administration ad colligenda bona in the estate, and having succeeded, now sought costs. The question was whether there had been proper reasons for the application for the grant. The deceased’s estate had assets internationally and his affairs were complicated. The family were in disagreement. The grant had been obtained to anticipate a grant in Pakistan, and to prevent intermeddling in the unadministered estate.
Held: A grant ad colligenda bona is a limited grant of administration, enabling the grantee to safeguard the assets of the deceased within the jurisdiction of the court. It is a useful, sometimes vital, power enabling urgent steps to be taken at a time when it is not yet practicable to obtain a full grant of probate or administration. However the affidavit which was the basis of the application was seriously flawed, and made allegations which were now accepted to be unfounded. The application for the grant should have been made on notice. It was clearly a contentious application, where allegations of dishonesty were being made, and whch was not so urgent as to preclude notice. The practice books said that it should be made without notice, but there was no such requirement in the rules. In these circumstances also, the solicitors who made the application were not sufficiently independent. Though the defendants had agreed to the withdrawing of the grant, that was inevitable. It was right that the defendants should pay the costs, and not out of the estate, but that should not be on an indemnity basis. Despite the decision in D’Costa, probate registrars in their duties exercise judicial functions: ‘It is inimical to a judicial process that a party should engage in private communications with the person exercising the judicial function whether during the proceedings or at a later stage. ‘
Judges:
The Honourable Mr Justice David Richards
Citations:
[2006] EWHC 825 (Ch), [2006] 2 All ER 1079, [2006] 1 WLR 3020
Links:
Statutes:
Non-Contentious Probate Rules 1987
Jurisdiction:
England and Wales
Citing:
Cited – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Cited – Shepherd v Wheeler ChD 2000
An application was made without notice for the appointment of an alleged creditor under section 116 as administrator of the deceased’s intestate estate.
Held: The court applied the standard principles of an enhanced duty of disclosure in . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) and others CA 30-Nov-2001
. .
Cited – Simms and others v The Law Society CA 12-Jul-2005
The appellant challenged intervention proceedings brought against his solicitors practice by the respondent. Following disciplinary proceedings, the Society had obtained summary judgment rejecting the application, and awarding costs. The solicitor . .
Cited – D’Costa and Another, Regina (on the Application of) v Secretary of State for Constitutional Affairs and Another Admn 23-Feb-2006
The claimant sought a declaration that the District probate Registrars were judicial officers.
Held: They were not. . .
Cited by:
Cited – Chantrey Vellacott v The Convergence Group Plc and others ChD 31-Jul-2007
The claimants, a firm of accountants, sued their former clients for unpaid fees. The defendant company counterclaimed for professional negligence. The claimant had expended andpound;5.6m in costs. The claimants now sought a non-party costs order . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Costs
Updated: 04 October 2022; Ref: scu.241459