Breslin v Bromley [2015] EWHC 3760 (Ch)

Analysis

Mr Breslin was the executor and beneficiary of the estate of his late aunt, Marjorie Beck (the deceased). He had taken the deceased to a firm of solicitors so that she could draw up the will. She executed the will elsewhere. Following her death, the second and third defendants challenged its validity. The third defendant also brought a claim of undue influence. The claimant brought a claim to propound the will and succeeded at trial. The second and third defendants argued that they should not have to bear the costs because the claimant had caused the litigation by failing to ensure the proper execution of the will.

Held

1. 1) The normal rule in civil litigation was that costs followed the event. However in the context of probate proceedings, the court may make an order for costs to be paid out of the estate where the testator, or a principal beneficiary, was ‘really the cause of the litigation’.
2. 2) However, the claimant was not the cause of the litigation. The proceedings might have been avoided if he had arranged for Mrs Beck to execute her will before the draftsman. However, the mere fact that someone can be said to be responsible for a will having been executed otherwise than in front of a solicitor cannot make it appropriate to view them as the cause of the litigation about it.
3. 3) Nor could Mrs Beck be regarded as having caused the litigation. A testator is not to be taken to have promoted litigation by leaving their own affairs in confusion just because they misled other people and perhaps inspired false hopes in their bosoms that they may benefit after their death.
4. 4) Nor should the court decline to make a costs order in the claimant’s favour simply on the footing that the circumstances warranted an investigation into the will’s validity. The courts appeared to be less willing to deprive a party of costs on this basis than was once the case. Here, the third respondent made a commercial decision which proved mistaken. It was fair that she should pay at least some of the costs that her brother has had to incur.
5. 5) The second respondent was able to avail herself of CPR 57.7(5). It was appropriate to make any costs order against her. She had not put forward a positive case that the will was invalid, but merely insisted on the will being proved in solemn form. However, she was to bear her own costs
6. 6) The right course was to order the third respondent to pay one half of the claimant’s costs from the date when she withdrew the allegation of undue influence. She should pay three quarters of the claimant’s costs up to that date (when the allegation of undue influence was live). Costs would be awarded on the standard basis.
7. 7) The court ordered payment on account of £70,000 in accordance with CPR 44.2(8).

JUDGMENT NEWEY J: [1] The normal rule in civil litigation is, of course, that costs follow the event. In the present case, there is no doubt that the claimant, Mr Stephen Breslin, has won. If and to the extent, therefore, that the normal rule is applicable, I should make a costs order in Mr Breslin’s …

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