Wylde v Culver

In a probate claim, permission to discontinue may be refused where a serious issue concerning the validity or due execution of a will requires determination. The question on discontinuance is assessed objectively by reference to the issue remaining at that time. Costs involve a distinct inquiry. Although the ordinary position is that the discontinuing claimant pays, the court may make no order where the claimant pursued the challenge on reasonable grounds. A reasonable but mistaken belief in facts which, if true, would justify pronouncing against the will may constitute reasonable grounds. The claimant’s conduct and perspective are relevant to costs, even where the claim is ultimately discontinued.

The claimant challenged the validity of the deceased’s 2003 will and sought revocation of probate and pronouncement in favour of an earlier will. The action was listed for trial when the claimant applied under rule 57.11 of the Civil Procedure Rules 1998 for permission to discontinue. The defendant opposed the proposed costs consequences. The court therefore had to determine whether the probate claim raised a serious issue requiring trial and, if discontinuance were allowed, whether the claimant should pay the defendant’s costs, receive costs from the estate, or have no order for costs.

The court granted permission to discontinue and made no order as to costs.

1. Discontinuance. Probate proceedings may affect persons beyond the litigating parties. The court may therefore refuse permission to discontinue where there is a serious question concerning the validity or due execution of a will which ought to be decided by the court. The relevant question is whether such a serious issue exists objectively at the time of the application.
2. The matters relied on by the claimant did not meet that threshold. Some depended on disputed evidence, while the remaining evidence did not make it likely that cross-examination would undermine the evidence supporting the 2003 will. The court therefore considered a trial unnecessary.
3. Costs. Although rule 57.11 does not contain the express presumption found in rule 38.6, the ordinary starting point is that a claimant discontinuing a probate action should pay the costs. The claimant bears the onus of showing a good reason for a different order. Costs from the estate were unjustified because the deceased and the defendant had not caused or encouraged the challenge.
4. The question whether there should be no order as to costs is distinct from the objective question whether a serious issue remains for trial. The court must consider the claimant’s conduct and whether, viewed from the claimant’s perspective and in light of his knowledge and means of knowledge, the challenge was pursued on reasonable grounds.
5. A reasonable but mistaken belief in facts which, if true, would justify pronouncing against the will constitutes a reasonable ground for opposing it. That principle, reflected in rule 57.7(5)(b), is not confined to cases in which the defendant gives the notice described in that rule. The claimant had acted sincerely and on reasonable grounds, despite ultimately concluding that the case was weak. Permission to discontinue was accordingly granted, with no order as to costs.