The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
Held: The costs of the trial itself should follow the event with only a limited element before that coming out of the estate. Two historical principles for the award of costs in probate cases survived the Civil Procedure Rules. A positive case has to be made out before departing from the general rule that costs should follow the event, and also that ‘the two great principles upon which the court acts’ are neither exhaustive nor rigidly prescriptive. They are guidelines, not straitjackets, and their application will depend on the facts of the particular case. The ‘touchstone should be whether it was the testator’s own conduct which had led to his will ‘being surrounded with confusion or uncertainty in law or fact’. If that causal test is satisfied, it should not in my judgment matter for the purposes of the first rule whether the problem is one relating to the state in which the deceased has left his testamentary papers (for example where a will cannot be found, or where there is a question whether a will has been revoked), or whether the problem relates to the capacity of the deceased to make a will.’ In this case th edeceased’s conduct may be regarded as the proper cause of the disupte, though ‘it can be a very difficult question to determine the precise point at which eccentricity shades into incapacity.’
Judges:
Henderson J
Citations:
[2007] EWHC 2909 (Ch), Times 11-Jan-2008
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Spiers v English 1907
The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
Cited – Mitchell v Gard 1-Dec-1963
The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
Held: Sir James Wilde said: ‘The basis of all rule on this . .
Cited – Boughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .
Cited – Twist v Tye 1902
The three plaintiff executors, who had unsuccessfully propounded a will, were also residuary legatees under the will, had themselves managed the deceased’s affairs before she made it, and had had ample opportunity of forming an opinion as to her . .
Cited – Davies v Gregory 1873
After a contested application, the court pronounced in favour of the will.
Held: Sir James Hannen did not agree that the first rule or exception applied only in cases where the state in which the deceased left his papers had given rise to the . .
Cited – Re Cutliffe’s Estate CA 1958
In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the . .
Cited – Re Plant deceased 1926
The court considered whether the executor should have his costs out of the estate unless he had acted unreasonably. Scrutton LJ warned: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of . .
Lists of cited by and citing cases may be incomplete.
Costs, Wills and Probate
Updated: 02 June 2022; Ref: scu.261898
