Mausner & Anor v Mincher & Anor

In probate litigation, costs ordinarily follow the event. The court may depart from that rule where the testator or residuary beneficiaries caused the litigation, or where the circumstances reasonably required investigation. A party may insist on proof in solemn form, but continuing to contest validity after clear professional evidence removes reasonable grounds for opposition and carries costs risk. The propounders’ conduct remains relevant where their lack of co-operation increases expense. A successful claimant’s Part 36 offer may justify indemnity costs and enhanced interest where the judgment is more advantageous than the offer, unless that result would be unjust.

The claimants propounded the last will of Mr Cross. The court had admitted it to probate in solemn form and then determined the costs of the probate action. The defendants had challenged due execution and knowledge and approval, principally because the will was in Dutch and the deceased did not understand Dutch.

The court considered whether the defendants’ costs should come from the estate, whether the parties should bear their own costs, and whether a Part 36 offer made by the claimants altered the costs consequences.

1. Ordinary rule and probate exceptions. Costs followed the event under Rule 44.3(2)(a), subject to the court’s power to make a different order under Rule 44.3(2)(b) and to consider all the circumstances, including conduct, under Rule 44.3(4). The pre-CPR probate principles summarised in Spiers v English [1907] P 122 continued to apply through that framework.
2. The defendants were initially entitled to seek an explanation because the will was in Dutch and there was a reasonable question about the deceased’s understanding. That justification ended when the notary supplied a clear statement that instructions were given in English, the contents were understood, and the will was explained and signed.
3. The statement and the will’s attestation provided no reasonable basis for continuing to challenge knowledge and approval or due execution. Although the defendants could insist on solemn proof, they did so after the available evidence had removed substantial grounds for suspicion and therefore took the costs risk. The claimants’ limited co-operation also contributed to the costs.
4. The exceptional facts in Larke v Nugus [2000] WTLR 1033 did not justify an estate-costs order here. The claimants had not caused the litigation, although their failure to co-operate fully warranted a reduction in their recovery.
5. The defendants were ordered to pay 75 per cent of the claimants’ action costs. Costs of the administrator pendente lite application were payable out of the estate.
6. The claimants’ offer under Rule 36.21 was more advantageous than the judgment. The court therefore ordered indemnity costs from 28 February 2006 and interest on those costs at 10 per cent above base rate. The probate context did not displace the settlement incentive in Part 36.