Costs in contentious will disputes

1. The general rule is that following a trial, costs will follow the event. In other words the loser pays (his own costs and the winning party’s)
2. This is varied in probate claims or will disputes, as the Court has an inquisitorial role in relation to Wills. In other words the court has an overriding duty to determine the validity of a Will. The effect of this means that to a large extent the party’s to a will dispute claim in relation to which court proceedings have been issued and served have to allow a court to consider the questions arising out of the claim, regardless of whether they have managed to resolve their differences before a trial. Accordingly, notwithstanding an agreement and therefore settlement, the court will still demand that it considers the evidence and position carefully before any order finalising the dispute is approved.
3. This has obvious consequences for costs as of course if the court finds the questions about the Will are justified, it may not award costs way one or the other but either allow costs to be paid for out of the estate or by the parties to the dispute, notwithstanding the outcome.
4. The exceptions to the general rule that “costs will follow the event” in will dispute cases were articulated by Sir Gorell Barnes P in Spiers v English as follows:
5. “In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have really been the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of these principles, which, if not exhaustive, are the two great principles upon which the court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shown why costs should not follow the event. Therefore, in each case where an application is made, the court has to consider whether the facts warrant either of those principles being brought into operation”