Smith & Anor v Springford & Ors

In a probate claim, the court may permit discontinuance on such terms as to costs as justice requires. Executors should not generally be compelled personally to fund litigation they no longer wish to pursue, nor should proceedings be continued merely to facilitate prospective personal costs claims against other parties. Where discontinuance prevents a judicial determination, costs must be assessed on established facts and sound conclusions from the available material. The ordinary rule remains that costs follow the event, but probate principles may justify costs lying where they fall where circumstances reasonably warranted investigation. An executor is ordinarily entitled to propound an apparently valid will. Costs may nevertheless follow from the point at which the executor knew the issues, the evidential strength of the challenge and the likely cost of resolving them, but failed to act reasonably.

The claimants, executors named in a later will, commenced proceedings to prove that will in solemn form after probate had been granted to an earlier will. The third defendant challenged the later will on grounds including forgery, undue influence and defective execution, and sought to add witnesses and beneficiaries for costs purposes. A jointly instructed handwriting expert later expressed strong support for the view that the will and signatures were not genuine. The claimants applied for permission to discontinue and for directions concerning costs. The issues were whether the proceedings should be allowed to continue to facilitate potential personal costs claims, and how costs should be allocated in the absence of a trial.

1. Permission to discontinue was granted. Under Civil Procedure Rules 1998, Part 57.11, the ordinary discontinuance provisions are displaced in probate claims and the court may permit discontinuance or dismissal on such terms as to costs or otherwise as it thinks fit.

2. The court would not compel the executors personally to risk further funds in litigation they no longer wished to pursue. Nor was it appropriate to keep the claim alive merely to enable the third defendant to pursue personal costs orders against witnesses or beneficiaries. Any such application would require a properly founded determination of whether the will was forged, and should have been made before trial so that the proposed parties could understand and meet the case against them.

3. Costs fell within the general discretion under Civil Procedure Rules 1998, Part 44, because the claim had not been judicially determined. The court had to rely on uncontested facts or sound conclusions from untested material. Although costs ordinarily follow the event under Part 44.3, probate cases recognise that costs may lie where they fall where circumstances reasonably lead to an investigation. Those principles are guidelines rather than rigid rules.

4. An executor is not obliged to propound a will, but is prima facie entitled to propound a will in which he is named executor. That entitlement may carry costs consequences if the executor knew that the document could not be supported. Here, the later will appeared valid and was witnessed by persons of apparent probity. The executors were therefore initially justified in propounding it. The court still had to weigh the handwriting evidence against the attesting witnesses’ evidence, since admission to probate remained a matter for the court.

5. By February 2007, when the defence made the forgery case clear, the claimants ought to have agreed promptly to a jointly instructed expert. From 1 July 2007 they were liable for the defendants’ costs because they then knew the issues, the likely evidential process and the cost of resolving them, yet continued longer than was reasonable. The costs were payable on the standard basis from that date. The first and second defendants’ costs were payable from the deceased’s estate on the indemnity basis. No indemnity costs order was made against the claimants for the application itself.

Not stated in the judgment.