In disputes, the usual rule in respect of costs is that the loser pays a proportion of the winning party’s legal costs. In disputes in respect of Wills however, there is a deviation from this rule in certain prescribed circumstances. This deviation is set out in CPR 57.7(5), which states:
“(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.”
The Court of Appeal case of Lumb v Lumb [2023] EWHC 2052 (Ch) offers an insight into the correct approach to CPR 57.7(5) in respect of a case where summary judgment was granted in favour of the Claimant due to there being no realistic prospect that the Claimant would not be granted probate in solemn form.
Lumb v Lumb [2023] EWHC 2052
Background
The dispute arose from the estate of Ina Margaret Lumb, who passed away in August 2020. The central issue was the validity of her final Will dated 25 January 2019, which made her younger son, Michael Lumb, the sole beneficiary of her estate. Michael’s older brother, Stuart Lumb, raised concerns about their late mother’s testamentary capacity and her knowledge and approval of the document, but ultimately raised no positive case, instead requiring his brother to prove that the Will was valid.
First instance decision
Following hearing the witnesses to the Will give evidence, the judge granted summary judgment in favour of the Claimant on the basis that the Defendant had no realistic prospect of defending the claim and accordingly granted probate in solemn form. The judge expressed some dissatisfaction with Stuart’s conduct but felt that he was bound to follow the rule in CPR57.7(5) and as such ordered that the Claimant was not able to recover his costs from Stuart. The judge however granted the Claimant permission to appeal his costs order.
The Appeal
In the appeal, the judge found that, the fact that the judge at first instance had determined that there was no realistic prospect of the Defendant defending the claim, meant that there could not possibly have been reasonable grounds for the Defendant to defend the claim and accordingly the Defendant did not benefit from the protection set in CPR 57.7(5). The judge therefore ordered that the Defendant pay the Claimant’s costs.
Comment
This case is a significant warning to those who want to unreasonably obstruct the obtaining of a grant of probate. A party will need to point to a significant area of dissatisfaction in terms of the preparation of the Will before the Court is likely to allow that party to avoid a costs order against them in the event that the Will is found to be valid.
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