An application was made for the payment of the costs of the action from the deceased’s estate.
Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek guidance from the Court in order to ascertain the interests of the beneficiaries: and see Rules of the Supreme Court 1971, O 66 r 9. Second, beneficiaries may apply to the court by reason of some difficulty of construction or administration that would have justified an application by the trustee, but where it was not convenient for the trustee to apply. In both of those situations, the costs of all parties can be characterised as necessarily incurred for the benefit of the estate. Provided the application was not, in substance, unreasonable, the court might direct costs to be taxed as between solicitor and client and paid out of the estate. Mr Justice Kekewich recorded that: ‘In a large proportion of the summonses adjourned into court for argument the applicants are trustees of a will or settlement who ask the court to construe the instrument of trust for their guidance and in order to ascertain the interests of the beneficiaries or else ask to have some question determined which has arisen in the administration of the trusts. ‘ In such cases the costs of all parties are necessarily incurred for the benefit of the estate and the court directed them to be taxed as between solicitor and client and paid out of the estate.
Kekewich J
[1907] 2 Ch 406
England and Wales
Cited by:
Cited – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Costs
Leading Case
Updated: 31 October 2021; Ref: scu.570852