James Paul Addison & Anor v Michelle Niaz

In non-contentious probate proceedings, the court has a wide discretion to decide by whom and to what extent costs should be paid. A solicitor who drafted or witnessed a disputed will is expected to respond fully and promptly to a Larke v Nugus request. An inadequate or delayed response may justify both an application for examination under section 122 of the Senior Courts Act 1981 and an order for costs, whether or not the will is ultimately upheld. Costs must remain proportionate and reasonable to the issues and the procedure undertaken.

The applicants obtained a summons requiring the respondent, who had taken instructions for and drafted the deceased’s disputed will, to attend court for questioning. The application followed repeated requests for information about the will’s preparation and execution. The respondent eventually provided a short response and later filed a witness statement and the will file.

The court considered whether the response was satisfactory, whether the summons and hearing were necessary, and who should bear the costs. It also determined the amount of costs payable following an earlier conditional costs direction by the District Probate Registrar.

1. The court had a wide discretion under rule 63 of the Non-Contentious Probate Rules 1987 to determine by whom and to what extent the costs of the summons application should be paid.
2. A Larke v Nugus request is intended to provide pre-claim disclosure and avoid wasted costs. A will drafter should provide interested persons with information about the circumstances surrounding the preparation and execution of the disputed will. The request should be answered fully, preferably by addressing clear questions in numbered form. Failure to respond may justify a costs order, regardless of whether the will is valid.
3. The response supplied by the respondent was inadequate and substantially delayed. The witness statement and attendance note also contained inconsistencies and omissions. It was therefore reasonable for the applicants to issue the summons and pursue the respondent’s cross-examination, which clarified matters.
4. The earlier conditional costs assessment did not constrain the court. The alternative provision in the registrar’s directions meant that the costs order was at large.
5. Applying the overriding objective in rule 3A of the Non-Contentious Probate Rules 1987, the claimed costs were reduced because attendances, document work and related work appeared excessive or duplicated. The respondent was ordered to pay the applicants’ costs, summarily assessed at £4,774.50 plus VAT, totalling £5,729.40.

Not an appeal. The judgment records an earlier directions order by District Probate Registrar Whitby on 9 October 2023, including a conditional costs assessment, but the present court determined the costs application and quantum.