In legal action, the normal rule of costs is that the unsuccessful party will be ordered to pay the costs of the successful party. However, the Court has the discretion to make a different order, taking into account the conduct of the parties.
In contentious probate claims, there are also specific exceptions to the normal rule arising under case law and under the Civil Procedure Rules (CPR).
For example, each party may bear its own costs where:
“the circumstances lead reasonably to an investigation of the matter”
As established in Spiers v English [1907] P 122, 7.
There is another rule which has been recently illustrated in the case of Elliott v Simmonds and others [2016] EWHC 962 (Ch). The rule can be found under 57.7(5) of the CPR:
‘(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.’
Elliott v Simmonds and others
In this case, the defendant entered a caveat against her late father’s estate. A caveat prevents a grant of probate being obtained until the Court has ruled on the validity of any challenge by the person who lodged the caveat.
The defendant was previously the beneficiary of a large legacy, but the most recent Will had left the estate entirely to the deceased’s partner.
The defendant argued that there was no apparent reason why her father should have excluded her from his Will and she raised various challenges against it, although no claim was actually brought by her.
Following the defendant’s challenges, the executor of the Will issued proceedings to prove the Will and in response the defendant gave notice under rule 57.7(5)(a) of the CPR (as set out above) and claimed that she did not raise a positive case but insisted on the Will being proved and invoked her right to cross examine the attesting witnesses of the Will.
It was established that the Will was not witnessed by a medical practitioner (and therefore there was a failure to follow ‘The Golden Rule’), however the Court did not find there to be any issue of capacity in this case. The Court held that there was no reasonable ground for opposing the Will and then addressed the issue of costs.
The Court exercised its discretion (and 57.7(5)(b) of the CPR) to order that the defendant should pay the claimant’s costs, but only from the point at which she and her professional advisers had sufficient information to enable them to form a view about whether there was a reasonable ground to challenge the Will.
Comment
This case provides a reminder that as soon as there is sufficient evidence that the Will is valid, it is sensible to remove the caveat and resolve any proceedings amicably in order to avoid an expensive costs order.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.