Costs of Contentious Probate Proceedings

A recent decision in the High Court has clarified the rules relating to who should pay the costs of a claim where a challenge to a will is abandoned mid-way through the trial.

The case of Goodwin –v- Avison dealt with a challenge to a will made by Mr Goodwin, a farmer and businessman who died in 2018 leaving an estate estimated to be worth between £3 million and £4 million. He had made a will in 2017 with the help of the then-girlfriend of his son, amending a previous will. That will was then formalised by solicitors and executed.

However, the son’s application for probate of his father’s estate was opposed by his sister, Jacqueline Avison, supported by her four children (although it appears that not all of them were actually in agreement with her). She alleged that the will had not been properly executed, that it was invalid as Mr Goodwin had not been fully aware of its contents and that the son and his girlfriend had exerted undue influence over Mr Goodwin.

The challenge in relation to the way in which the will had been executed was quickly abandoned but court proceedings were issued in relation to the other grounds and the matter came to trial earlier this year. However, on the sixth day of the trial, the sister and her children dropped their challenges to the will and conceded the case.

The judge then had to decide who should pay the (very considerable) costs of the proceedings. The usual principle in litigation is that the loser pays the winner’s costs, although the court does have a discretion in proceedings connected with the validity of a will to order that the costs of the challenge should be paid out of the estate. Crucially, however, this power is only exercised when the judge determines that the cause of the proceedings was the conduct of the testator (the person who made the will). Otherwise, the usual litigation rule applies and the losing party has to pay the costs of the successful party.

In this case, where a party alleged both undue influence and lack of knowledge and approval of the contents of the will, the default position is that the unsuccessful party will have to pay the costs related to both issues.

The judge was satisfied that the unsuccessful Mrs Avison and her children must pay both their own and also those of the claimant, Mr Goodwin’s son. On all of the three issues raised by the different defendants, none could be said to be the caused by Mr Goodwin. The judge also did not think the defendants had any reasonable grounds for challenging the will.

It is in our experience very common for a party who is unhappy with the contents of a will, or the circumstances in which it was said to have been made, to say that they want to challenge it in court. This is sometimes driven by a belief that the costs of doing so will ultimately be paid out of the estate.

The case is a good reminder that any party who is considering challenging a will must consider at an early stage whether the cause of the litigation can properly be said to be the actions of the testator, as well as whether there are reasonable grounds to challenge the will. If it can’t, it is dangerous to assume that their costs will be paid from the estate.

If you require assistance with an estate dispute, or just in relation to your own estate planning, please contact our Wills, Trusts and Probate department on 0161 926 9969 or by email at wtp@mlplaw.co.uk. We will be delighted to assist you with any requirements which you may have.