Costs Where Executors Seek to Prove a Will
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss what happens with costs when Executors seek to prove a Will
Can Executors prove a Will?
Ordinarily it falls to the disappointed beneficiary to bring the contested or disputed Will claim – or the beneficiary who is seeking to establish the contested or disputed Will is in fact valid. As a general rule then, one must have a financial interest in the outcome of the contested or disputed Will claim to bring and/or defend it.
However, and as per our earlier blog on the subject (see below), an Executor can also (in limited circumstances) bring such a claim but very generally, they must be cautious about doing-so, because they are unlikely to have a direct financial interest in the outcome and it is possible the Court could punish them in relation to their costs in consequence.
Who Can Bring a Claim Against the Legal Validity of a Will – Will Claim Solicitors
So Executors can bring a claim to prove a Will but must be cautious in so-doing
As above, the impression from case law, is that Courts are not keen to encourage this fearing one supposes that it could lead to a plethora of claims by overly enthusiastic Executors who might be expecting their enthusiasm to be awarded by way of their costs being paid from the deceased’s estate and possibly on an indemnity basis.
The position has been explored once again in Richefond v Richefond [2023] EWHC 2796 (Ch):
Richefond & Ors v Dillon & Ors [2023] EWHC 2796 (Ch) (10 November 2023) (bailii.org)
The Claimants in Richefond were the Executors appointed by the Will which they sought to prove. They were partially successful; the Will was found to be valid in part but the gift of residue failed for lack of knowledge and approval. As a result, that part of the deceased’s estate devolved under the rules of intestacy.
The case above, concerned the allocation of costs.
The case is interesting in relation to its findings as to the role of Executors in cases of this nature but should also serve as a warning that their costs will not necessarily be met.
Paragraph 14 of the Judgment explains the right to bring the claim:
As Theobald on Wills (19th ed) explains at [11-005]:
An executor or a beneficiary under a will may, for his own protection (particularly in cases where doubts have been raised by those interested under another will or on intestacy), desire to prove the will in solemn form. By doing so they obtain a decision, which ensures that no future contest arises over the validity of the will and that a decision is obtained while the witnesses are still available. Executors should, however, remain neutral if the validity of the will is contested.
In such cases the executor or beneficiary should issue a claim form and join as defendants the executor and principal beneficiaries of any immediately prior will who would be adversely affected by the proving of the will propounded. Where there are doubts as to the validity of the will immediately prior to that propounded, it may be advisable to join persons interested in a yet earlier will, or on intestacy. Any beneficiaries entitled to lesser interests in the will immediately before that propounded, if adversely affected, should be notified and given an opportunity to become parties. Where there is no other will those interested on intestacy should be made defendants.
The classic cases on costs in claims involving disputed Wills and estates, namely Spiers v English [1907] P122 and Kostic v Chaplin [2007] EWHC 2909 (Ch) are discussed in detail. These raise two exceptions to the normal rule that the loser pays the winners costs. The first of the two exceptions arises from the question of whether the deceased was really the cause of the litigation (in which case the parties costs should be ordered to be paid by the estate). The second is where the circumstances lead reasonably to an investigation of the matter (in which case no order on costs could be made).
When the Court in Richemond considered these exceptions it looked closely at the circumstances and investigations prior to the issue of proceedings. This it distilled down to the Will maker’s (a “Mr Coe”) failure to “bring home to [the deceased] the operation of the gift of residue”. The Executors were apparently aware of the potential uncertainties of the deceased’s state of knowledge. Paragraph 34 of the Judgment is telling in this context:
I conclude that the circumstances were such as to reasonably lead to an investigation, but a pre-action investigation, not one that required the issue of proceedings and the processes of disclosure and exchange of witness statements. The Grizzle Children had pursued their investigation with WSL to an extent that led to the terms of their letter of 2 November 2021. Against that background the executors should have pursued further enquiries of WSL and Mr Coe himself before issuing proceedings. They do not seem to have done any further investigating until they made contact with Mr Coe in June 2022, as is recorded in his witness statement.
It found that the circumstances lead reasonably to a “pre-action” investigation – not to the issue of full-blown proceedings. In other words the Executors were a little too enthusiastic for their own good. Their actions were more culpable because one of their number was also a beneficiary (albeit acting prima facie in a “neutral” capacity – presumably to try and avoid costs risk). The Court then concluded that the Claimants were not entitled to their costs from the estate. I quote from paragraph 40 below by way of reference:
By actively pursuing the claim, rather than taking a neutral stance, the claimants have not acted for the benefit of estate but for the benefit of one of their number namely, Theodora. That was a course that they took at their collective risk as to the costs order that might follow. I conclude that the claimants are not entitled to be indemnified from the estate for any costs incurred or any costs which they are liable to pay.
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