When it comes to costs orders in contentious probate claims, there are two common law exceptions to the general rule that costs are usually awarded to the winner, which are peculiar in contentious probate claims.
These two exceptions are:
- If the litigation was caused by the testator or a beneficiary, the court may order that all parties costs, including the unsuccessful party’s costs, be paid out of the estate; and
- If the circumstances, including the knowledge and means of knowledge of the opposing party, led reasonably to an investigation of the matter, the court may make an order as to costs that reflects that.
The aim is that these two exceptions will:
- Dissuade parties from fruitless litigation in the knowledge that their costs will be paid by others; and
- Prevent ‘doubtful wills’ from being easily proved as a result of the cost of opposing them.
The two expectations about were set out in Spiers v English [1907] P 122 and then cited in Kostic v Chaplin EWHC 2909 (Ch). These exceptions were considered at length by Joanna Smith J in Leonard v Leonard [2024] EWHC 979 (Ch).
Joanna Smith J had a number of issues to address when deciding costs. It was concluded that the dispute was not caused by the testator or a beneficiary and that the court should make no order for costs during a period in the middle of the proceedings.
The court has a discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. It is important to note that these exceptions are not applied lightly. In Boult v Rees [2023] EWHC 972 (Ch), the court found that investigations into the validity of the will were justified only up to a certain point. Once it was considered that sufficient evidence was available to assess the merits of the claim, the general rule applied. This resulted in the Claimant being ordered to pay costs from that point onwards. This decision demonstrates the court’s approach of balancing the need for reasonable investigation with the principle that costs should follow the event.
Another party who may be involved in a claim of this nature and be impacted by a costs order is the personal representatives (PRs). When PRs are involved, this brings a whole new level of risk. PRs may choose to take a neutral stance and in complying with court orders can expect to recover their costs from the estate. In the alternative, if it is the PRs who actively brings a claim, they risk being ordered to pay the other parties’ costs in the event the claim is unsuccessful, unless it is deemed that the PRs acted reasonably in their pursuit of the claim or that they obtained prior approval from the court before starting to pursue the claim.
How can we help?
Faye Dunkley is an Associate in our expert Dispute Resolution team, specialising in inheritance and Court of Protection disputes.
If you need any advice concerning the above subject, please do not hesitate to contact Faye or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.