Contentious Probate, What about costs?

Subject to the discretion of the court, the general rule is that costs follow the event. That is that the successful party’s costs should be paid by the unsuccessful party.

A recent case has provided a salutary reminder that in contentious probate proceedings this rule is subject to certain exceptions, namely where the testator or those interested in the residue caused the litigation, or the circumstances reasonably lead to an investigation of the matter. In those cases, costs lie where they fall.

The deceased had a wife, one son and two daughters. He owned a farming and haulage business. During his lifetime he had given away some land to one of his daughters and had dissolved a farming partnership which involved transferring the haulage business to his son. In his 2010 will he left the remaining land he had and residue of his estate to his wife and two daughters, but nothing to his son.

His son brought a claim against the deceased’s estate on two grounds:

  1. that the will was invalid due to the testator’s lack of testamentary capacity, and
  1. that he was entitled to the land left by the will by virtue of a proprietary estoppel claim in his favour.

The son was unsuccessful on both counts. The Court confirmed that the applicable test for assessing capacity to make a will after death is the common law test in Banks v Goodfellow (1870):


It was determined that although the testator suffered from “memory loss and confusion from time to time, and even some irrational behaviour” the testator had demonstrated a rational and balanced approach to the disposal of his estate. The son had already benefitted during the testator’s lifetime and the testator was entitled to seek to redress the balance between his wife and other children on his death.

It was accepted that the son should pay the defendants’ costs in relation to the proprietary estoppel claim.  However, in respect of the first ground, he argued that the second limb in Spiers v English [1907] P 122 applied. This provides that: “if the circumstances lead reasonably to an investigation of that matter, then the costs may be left to be borne by those who have incurred them”.

This principle was detailed in Davies v Gregory (1873) LR 3 P&D 28 in which it was stated that:

“Where the facts show that neither the testator nor the persons interested in the residue have been to blame, but where the opponents of the will have been led reasonably to the bona fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course, the opponents must have taken all proper steps to inform themselves as to the facts of the case, but if, having done so, a bona fide belief in the existence of a state of things which, if it did exist would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs.”

The court accepted in this case that there was a ‘reasonable belief’ for challenging the will as:

  • the deceased was suffering from Alzheimer’s disease and the medical and factual evidence as to the deceased’s capacity was doubtful,
  • both medical experts agreed that this was a case which was close to the line, and
  • the solicitor taking instructions for the will had failed to follow the golden rule in Kenward v Adams as she had failed to obtain a medical opinion at the time of making of the will.

The court made no order as to costs in respect of the will challenge. The costs were therefore borne by the respective parties who had incurred them.

It remains to be seen if the parties to the litigation seek to recover their costs from the solicitor who prepared the will. There is a clear line of cases that when a will writer’s negligent conduct in the will-making process causes the estate to incur unrecovered costs in contentious probate proceedings that the will writer will be liable for those costs

The court also found that the defendants’ Part 36 offer was defective and as a result the defendants were deprived of the favourable costs consequences of Part 36.

James v James and others [2018] EWHC 43 (Ch), [2018] All ER (D) 124, James v James & Ors [2018] EWHC 242 (Ch).
