Theodora Richefond & Ors v Hope Dillon & Ors

In probate litigation, costs ordinarily follow the event. Departure from that rule requires a positive case under the recognised exceptions: the deceased or those interested in the residue caused the litigation, or the circumstances reasonably required an investigation. The exceptions are flexible guidelines, not rigid rules, but they are applied narrowly and depend on the facts.

Executors have no general duty to prove a will. Executors who actively propound a will without prior court sanction or an agreed indemnity do so at risk as to costs. Where an executor-beneficiary has a financial interest, non-beneficiary executors should ordinarily remain neutral unless the circumstances justify active participation. Pre-action investigation may be required before proceedings are issued.

The claimants were the executors of Kenneth Grizzle’s will and included his partner, Theodora Richefond, who stood to benefit from the will. The active defendants were Kenneth’s children from an earlier marriage, who challenged the will. The court had previously held that the will was valid as to a trust over Kenneth’s share of Stanley Road, but that the residuary gift failed because Kenneth did not know and approve it. Residue therefore passed on intestacy.

Following that judgment, the court determined the parties’ costs. The central issues were whether either probate exception applied, whether the executors had acted neutrally and for the benefit of the estate, and how the parties’ partial success should affect the order.

1. Costs framework. The court applied Civil Procedure Rules 1998, rules 44.2 and 46.3, together with Practice Direction 46. The general rule is that the unsuccessful party pays the successful party’s costs, subject to the court’s discretion and all the circumstances.
2. Probate exceptions. The principles in Spiers v English [1907] P 122, as explained in Kostic v Chaplin [2007] EWHC 2909 (Ch), remain applicable. They are guidelines rather than rigid or exhaustive rules. A positive case is required before departing from the general rule. The first exception focuses on whether the deceased’s conduct caused the uncertainty or confusion leading to litigation. The second applies where the circumstances reasonably led to an investigation.
3. First exception. The drafting solicitor and firm were acting as the deceased’s agents and their conduct caused the failure of knowledge and approval. That would ordinarily justify the executors in propounding the will. However, the claimants knew of the deceased’s limited literacy, knew that the will had not been read or explained to him after instructions were taken, and actively pursued the claim in Theodora’s financial interest. The first exception therefore did not apply.
4. Second exception. The circumstances justified investigation, but the investigation should have been completed before proceedings were issued. The claimants should have pursued further enquiries of the solicitor and obtained his evidence before commencing the claim. The second exception therefore did not apply.
5. Result. The claimants were not entitled to an indemnity from the estate. Neither side was ordered to pay the other’s costs because both achieved material but incomplete success and their costs could not realistically be apportioned. The Grizzle Children’s costs were ordered to be paid out of residue before distribution, avoiding a risk-free windfall to the residuary beneficiaries.