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 the circumstances lead reasonably to the investigation in regard to a propounded document. In the latter case the costs may be left to be borne by those who incurred them. In the former the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate.
Sir Gorell Barnes P said: ‘In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation.’
Sir Gorrell Barnes P
[1907] P 122
England and Wales
Cited by:
Cited – In re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
Cited – Kostic v Chaplin and others ChD 7-Dec-2007
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 . .
Endorsed – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.182792
