Costs when validity of Will contested

 In Comment

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Elliott v Simmonds [2016] EWHC 732

This case concerns the question of costs arising out of the decision previously by the Judge to pronounce in favour of the validity of the Will of Kenneth William Jordan. The normal rule of costs is that costs follow the event but the court has discretion to order otherwise. In a contentious probate claim there are also specific exceptions to the normal rule from case law and under the CPR (for a discussion of these issues see a pair of articles on the LawSkills website by Amy Berry of Pump Court Chambers – “Costs in Contentious & Non-contentious Probate & IPFD Act 1975” – Part 1 and Part 2.

Case Summary from LawSkills | Private Client specialist trainersThe facts

In the contested Will action Miss Ruth Simmonds did not raise any positive case for the Will to be declared invalid. She had contemplated, but did not pursue, an action under s.2 Inheritance (Provision for Family & Dependents) Act 1975 claim. What she insisted on was the Will being proved in solemn form and to invoke her right to cross-examine the witnesses.

The law

Under CPR 57.7(5) (b) if a notice is given under CPR 57.7(5)(a), as here, “the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the Will.”

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The judge therefore had to decide whether or not there was a reasonable ground for opposing the Will. He proceeded on the basis that it was for the claimant to satisfy the court that there was no such reasonable ground.

If Miss Simmonds had a reasonable ground for opposing Mr Jordan’s Will then no order for costs should be made – with the result that each party would bear their own costs. Mr Jordan’s executor was the second defendant in the case and the Judge said that if he made no order for costs then this would not prevent the executor from his entitlement to recover his costs of the proceedings from the estate – CPR 44.10(1)(b).

Edward Murray sitting as a Deputy Judge said that it did not follow that because he upheld the Will it was the case that there was no reasonable ground for challenging it.

He said there was little modern case law to provide guidance on the costs rule. In Spiers v English [1907] P 122 Barnes P said that there were exceptions to the normal costs rule in a positive case:

  • If the person who made the Will or who benefits under its residue are the cause of the litigation a case is made for the costs to come out of the estate.
  • 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

His attention was drawn to Wylde v Culver [2006] 1 WLR 2674 in which, it was argued, support could be found for the view that the second principle in Spiers v English, applicable in a positive case, was in fact the same rule in CPR 57.7(5)(b), applicable in a passive case, but viewed from different perspectives.

The decision

Mr Murray concluded that Miss Simmonds did not have a reasonable ground for opposing the Will. He rebutted the contentions of her counsel as follows:

  1. The suggestion that Mr Jordan removed the legacy to Miss Simmonds without reason was not an issue on which the witness to be cross examined would have been likely to be able to provide any material assistance – it did not justify him being called as a witness
  1. The fact that in an attendance note of Tony Roe it was said that Mr Jordan failed to recall signing his Will was not sufficient ground to call upon the witness for cross examination
  1. Much of counsel’s cross examination of Mr Mumford in the action was spent exploring Mr Mumford’s practice in relation to preparing attendance note and in this case his failure to do a detailed attendance notes as to Mr Jordan’s instructions for his Will. Although regrettable there was no such attendance note, the Will was simple and there was ample supporting evidence of the substance of the instructions that little was to be gained from cross examination of Mr Mumford
  1. Counsel spent time exploring with Mr Mumford Mr Jordan’s medical records but it was hard to see that this cross examination would yield anything of significance

Mr Murray also rejected the idea that as there were four reasons for cross examination of the witness together they raised a reasonable ground for opposing the Will.

The question of when the order for costs against a defendant should run must be answered as it is only reasonable that an order for costs should run from when the defendant had sufficient material on which to form a view as to whether there was any reasonable ground to oppose the Will. A specific date from which Miss Simmonds should be at risk for the claimant’s costs was stipulated by Mr Murray based on the facts of this case.

The executor’s costs would come out of the estate so the claimant, as residuary beneficiary, would effectively bear them if no order for the costs of the second defendant was made against Miss Simmonds. However, a request was made for no order for costs by the executor and the claimant did not oppose this so no order was made.

Accordingly, it was ordered (under CPR 44.2(8)) that Miss Simmonds pay a reasonable sum on account of costs – this was said to be £65,000 based on the claimant’s cost budget unless the parties were able to agree on another figure.

Practice points

Once again a contested Will case costs both a claimant and the estate significant amounts of money. One hopes that mediation of this type of case becomes more popular.

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