Who pays the costs if a challenge to a Will is abandoned mid-way through a trial?


22 November 2021

The High Court was asked to address this issue in the recent case of Goodwin v Avison & Others [2021] EWHC 2356 (Ch) and, in doing so, provided some welcome clarification on the costs principles which will be applied in contentious probate claims and, more specifically, in cases where a party decides not to proceed with their pleaded case part-way through a trial.

What is the starting point on costs?

It is a common misconception that the costs of a probate claim will automatically be paid from the estate. The Civil Procedure Rules (CPR) and previous case law have long established that, in most probate claims, the usual costs rules will apply and the unsuccessful party will be ordered to pay their opponent’s costs, as well as their own. There are, however, two further costs principles which will be considered by the court in probate claims:

  1. Costs may be ordered from the estate if it can be shown that the testator’s conduct was the real cause of the litigation. For example, and as per Hodson LJ in Re Cutliffe’s Estate [1959], if the testator has “promoted litigation by leaving his own affairs in confusion” and “misled other people, and perhaps inspired false hopes” that they will benefit from the estate, the court may decide that the circumstances justify an order that the estate pays the costs of all parties, regardless of who is successful.
  2. If the party challenging the will has reasonable grounds to do so, and has not acted unreasonably or disproportionately in doing so, the court may order that each party bear their own costs. This will only apply where all proper steps have been taken to investigate the circumstances in which the will came into being and this leads to a bona fide belief that there are good grounds to challenge the Will.

What were the facts in Goodwin v Avison?

The deceased, Thomas Goodwin, was a successful businessman who died in November 2018 leaving a sizeable estate worth somewhere in the region of £3-4m. It is fair to say that Mr Goodwin had difficult relationships with his children during his lifetime, falling out with both his son, Gary, the claimant in the proceedings, and his daughter, Jacqueline, who was named as a defendant. 

The claim related to Mr Goodwin’s most recent Will which was made in July 2017 (the 2017 Will), with the assistance of Gary and his then-girlfriend Claire Grime, who helped Mr Goodwin to amend his earlier Will, dating from 2005. The amended 2005 Will was then formalised and executed with the assistance of solicitors. The 2017 Will left Mr Goodwin’s residuary estate to Gary whereas the earlier Will had named a number of Mr Goodwin’s grandchildren as the beneficiaries of his residuary estate.

In 2018, relations between Mr Goodwin and Gary broke down and Mr Goodwin told his solicitor that he would not have made the 2017 Will had he been aware of its terms. He also alleged in writing that Gary and Ms Grimes had tricked him into making the 2017 Will. These statements were later relied upon by the defendants in the proceedings to argue that the circumstances in which the 2017 Will was prepared were suspicious.

After his father’s death, Gary issued a claim seeking a pronouncement in favour of the 2017 Will. Jacqueline made a counterclaim alleging that the 2017 Will was invalid on the grounds of; (a) lack of due execution; (b) lack of knowledge and approval; and (c) undue influence exerted by Gary and Ms Grime. The remaining defendants were Jacqueline’s children who took differing approaches to Gary’s claim, with three out of the four adopting their mother’s position. The remaining defendant did not advance a counterclaim but required Gary to prove due execution.

What happened at trial?

The case came before Judge Davis-White QC in August of this year. Much of the first day of the trial was spent dealing with an outstanding application for third-party disclosure from a firm of solicitors. This, coupled with Gary’s late disclosure of recordings of meetings he had attended with Mr Goodwin and a solicitor, meant that “really important” evidence was only available at a very late stage of proceedings. The judge then went on to hear witness evidence from the parties. However, after just six days and before much of the evidence relating to the plea of undue influence had been heard, the defendants agreed to enter into a consent order which provided that the 2017 Will be admitted to probate in solemn form. 

What about the costs?

The court held that the defendants’ decision to abandon their counterclaim amounted to an acceptance that their evidence was insufficient to raise a case to be determined at trial. On this basis, the defendants were ordered to pay Gary’s costs of the whole claim.

The defendants challenged the court’s decision as to costs and maintained that their doubts as to the validity of the 2017 Will were perfectly reasonable, and so their costs should either be paid by the estate or there should be no order as to costs. They also argued that Gary’s late disclosure had materially affected their position. The court disagreed and held that the defendants had failed to establish that one of the specific exceptions in probate claims referred to above applied in this case. Although the judge had not heard all of the evidence, he found that, on the basis of what he had heard, the defendants had not acted reasonably in challenging the validity of the 2017 Will. The fact that late disclosure had been made was not enough to alter the costs order; the court did not consider that Gary had deliberately withheld evidence and the delay in obtaining a third-party disclosure order was the fault of all parties. Furthermore, the judge found that, in reality, the whole of the defendant’s case was advanced on the basis of the undue influence allegation. As the defendants’ undue influence claim had ultimately failed they should therefore be liable for the costs associated with all of the issues.

What does this mean if you want to make or defend a claim to challenge a Will?

This case is, first and foremost, a stark reminder that there is no guarantee that costs will be paid from the estate when the validity of a Will is challenged. It is therefore crucial to consider the costs principles discussed above at an early stage to avoid the risk of costly speculative litigation. Furthermore, if a Will challenge is abandoned mid-trial, a party will not be able to rely on evidence which has not been heard by the court to establish the reasonableness of their actions in bringing, or defending the claim; this is all the more reason to review the position as proceedings progress and to take stock of the evidential position at regular intervals.

This case is also a useful recap of the inherent risk of pursuing an undue influence argument and the long established principle that a party who fails on an undue influence claim will likely be ordered to pay the costs of the whole claim and not just that isolated issue. 

The specialist Contentious Trust and Probate Team at Birketts have a wealth of experience in advising both claimants and defendants in relation to claims to challenge the validity of Wills. Please do get in touch for further advice.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2021.

Authors

Kate Harris

Senior Associate

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