Fiona Jane Burgess v Julie Elizabeth Whittle & Anor

In contentious probate proceedings, the general rule that costs follow the event remains applicable. The second probate exception may justify no order as to costs where the opposing party’s knowledge and means of knowledge made an investigation reasonable. The court must examine whether reasonable suspicions existed, when they existed, and whether the justification for investigation continued as the evidence developed. The exception is not confined to particular grounds of invalidity and is not limited to challenges by will challengers rather than proponents. An indemnity costs order is appropriate where conduct is well outside the norm, including persistence with an objectively weak case, late concession and unreasonable refusal of settlement offers. A successful legatee who propounds a will may recover unrecovered costs from the estate on the same indemnity basis as an executor.

The claimant successfully propounded the deceased’s 2014 will in the substantive proceedings. The court held that the will was valid and directed that a grant of administration with the will annexed issue to the claimant: [2025] EWHC 2633 (Ch).

The first defendant had challenged the will on several grounds and counterclaimed, but ultimately became neutral on the issues shortly before trial. The claimant sought her costs from the first defendant on the indemnity basis, a payment on account, interest and an indemnity from the estate for costs not recovered from the first defendant. The central questions were whether the second probate exception applied, whether the first defendant’s conduct justified indemnity costs, and whether the claimant could recover costs from the estate.

1. The first defendant was ordered to pay the claimant’s costs of the claim on the indemnity basis, subject to detailed assessment if not agreed. The court ordered a payment on account of £109,000 by 4 pm on 17 November 2025 and awarded interest as sought.

2. The general costs discretion arises under Senior Courts Act 1981, section 51(1), and CPR rule 44.2. Although contentious probate cases engage the long-established exceptions described in Spiers v English, the general rule remains that the unsuccessful party pays the successful party’s costs.

3. The second exception requires consideration of whether the circumstances, including the opposing party’s knowledge and means of knowledge, led reasonably to an investigation. The court must consider whether reasonable suspicions existed, when they arose, and how long they remained justified. An investigation may be reasonable initially but cease to be justified as the evidence clarifies the position. The exception is a guideline rather than a straitjacket and depends on the facts.

4. The second exception is not subject to the accepted narrowing applicable to the first exception. There is no principled distinction between unsuccessful challengers and unsuccessful proponents of a will. Nor is the exception automatically unavailable where invalidity is alleged for want of knowledge and approval or lack of testamentary capacity.

5. On the facts, the first defendant had no reasonable basis to suspect invalidity. The available will, will file, medical material and later expert evidence supported validity. Her prolonged failure to investigate, late application for expert evidence, persistence with unsupported allegations and eventual concession immediately before trial meant that the second exception did not apply.

6. An indemnity costs order is justified where conduct is out of the norm. The first defendant’s case was objectively weak and speculative, the concession was made too late, and the conduct in refusing successive settlement offers was grossly unreasonable. A litigant in person is subject to the same procedural rules as a represented litigant: Barton v Wright Hassall LLP [2018] 1 WLR 1119.

7. The usual approach of fixing a payment on account by reference to a high percentage of an approved budget is not applicable to a significant indemnity-costs element, because CPR 3.18 does not govern indemnity assessment: Burgess v Lejonvarn [2020] EWCA Civ 114. The claimant was entitled to recover from the estate, to the extent not recovered from the first defendant, because a successful legatee who propounds a will is entitled to be placed in the position of the executor.

This was a first-instance judgment on costs following the substantive decision reported at [2025] EWHC 2633 (Ch). The will was held valid and the claimant succeeded in propounding it.