Jarrom & Anor v Sellars

In a probate action, costs remain in the court’s discretion. Although the usual rule is that costs follow the event, special circumstances may justify making no order as to costs. Such circumstances can arise where the litigation was reasonably commenced or maintained as an enquiry into suspicious circumstances, but the parties later accept that probate should be granted and differ principally about preserving the estate or managing a related claim. In that situation, parties should make reasonable efforts to meet and explore a practical resolution before issuing proceedings. A refusal to meet is not justified merely by the absence of a detailed agenda, proposals or supporting witness statements. The court may therefore leave each party to bear its own costs, with executors recovering their costs from the estate.

The claimants were the executors named in the deceased’s 2004 will. The defendant, the deceased’s daughter and beneficiary under an earlier will, entered a caveat and raised possible challenges based on testamentary capacity, knowledge and approval, undue influence and duress. She also indicated a possible proprietary estoppel claim concerning the deceased’s property.

After correspondence and provision of information about the will’s execution, the defendant no longer objected in principle to a grant of probate. The parties remained unable to agree the terms on which the estate should be preserved and the related claim addressed. The probate action was discontinued by consent, leaving the court to determine the costs of the action.

1. The court had already ordered by consent that the claim be discontinued and that probate be granted in common form to the claimants, subject to their entitlement. The issue was costs.

2. Under CPR 44.3(2), costs were in the court’s discretion, although the unsuccessful party would ordinarily pay the successful party’s costs. Probate actions were subject to the same general rule as other actions, but special circumstances could justify a different order.

3. The established exceptions included cases where the testator or residuary beneficiary was at fault, so that costs came from the estate, and cases involving a reasonable enquiry, where no order as to costs might be made. The defendant’s initial request for information about the circumstances of execution was reasonable, given the radical change between the 1990 and 2004 wills.

4. By October 2005, however, the information available gave the defendant little prospect of establishing lack of capacity or undue influence. The real dispute was no longer whether probate should be granted. It concerned preservation of the estate pending a possible proprietary estoppel claim and the executors’ administration of an estate with liabilities and few liquid assets.

5. Both sides should reasonably have explored these practical issues at a meeting before proceedings were issued. The lack of a detailed agenda, proposals or witness statements did not justify refusing to meet. A meeting might not have settled every claim, but it could have clarified the issues and reduced unnecessary costs.

6. Those circumstances justified the exceptional course of making no order as to costs. The executors were left to recover their costs from the estate.