Analysis
The deceased, Owen Davies (D), was born in England but died in France. He was living in Belgium at the time but owned a house in England and had made a will in England some 12 years before his death under which the fifth defendant, his uncle Clive Davies (Clive), was interested in residue. He was not on good terms with his mother and siblings represented by the first to third defendants (the family defendants (FD)) when he made his will and they contested probate proceedings claiming that D had died domiciled in Belgium and that the will was null and void under Belgium law, pleaded that the will was a sham as D’s true testamentary intention appeared a letter of wishes not executed in accordance with the Wills Act 1837 and that Clive had procured the execution of the will by some form of unspecified undue influence. At a preliminary hearing the judge found that D died domiciled in England and ordered FD to pay the costs of the preliminary issue with a payment on account of £50,000 to be paid by 10 October 2011. This amount was not paid until 23rd December 2011 when the sheriff levied execution. FD were refused permission to appeal these decisions and an anti-suit injunction that had been granted in respect of Belgian proceedings brought against Clive by them. In respect of costs the proposed ground of appeal was that the judge should have made a different order because the claimant, a solicitor and executor of the will (M) had refused to mediate. In dealing with this issue Lewison LJ commented that:
‘The fact that one party refused to mediate is not a trump card; with the consequence that the proposed appeal does not appear to be a strong one.’
Following refusal of the appeal FD indicated that they no longer had any objection to M as executor and did not intend to pursue the counterclaim. The claim for probate was listed for trial on written evidence and FD applied for permission to discontinue the matter. FD claimed that remaining costs of the claim and counterclaim should not be awarded against them as Clive and M had acted improperly in failing to inform the family of D’s death and withholding information about the funeral and had refused mediation.
Held:
Will pronounced valid and counterclaim dismissed [4]. FD to pay the costs of M (to be subject to a detailed assessment on the standard basis if not agreed). Any unrecoverable costs of M to be paid out of the estate on an indemnity basis [21].
It was common ground that FD had to make a positive case for departing from the general rule that costs should follow the event. The costs of a contentious probate action were within the discretion of the court and CPR parts 43 and 44 applied. The general rule was that the unsuccessful party would be ordered to pay the costs of the successful party. However CPR part 44.3(2)(b) provided that the court might make a different order and it was accepted that in contentious probate claims there were two long established exceptions to the general rule that survived the introduction of the CPR. These were that if the person who made the will or persons who were interested in residue were really the cause of the litigation costs a case was made for those costs to come out of the estate and, that if the circumstances surrounding the will led reasonably to an investigation of the matter, then the costs might be left to be borne by those who incurred them [5, 6].
FD had relied on the conduct of Clive as a person interested in residue but much of their case was problematic. Under s1 of the Wills Act 1963 the formal validity of a will was not exclusively determined by the law of the deceased’s domicile at the time of death; it was difficult to see how a will could be attacked as a sham on the ground alleged or at all; and, in a probate action, a plea of undue influence was tantamount to one of fraud and had to be particularised. Most importantly there was no causal link between the conduct of Clive or D and the points raised in litigation. Nor, on the facts, was it established that this was a case where the opponents of the will had been led bona fide to believe there was good cause for investigation. Finally, FD had not raised any issues that were substantial enough to justify mediation so that it was not unreasonable to refuse such.
With regard to the execution of judgment M was entitled to act as he did. The sum was two months overdue and no extension of time had been granted [20].
JUDGMENT MR ROBERT HAM, QC: [1] Mr Charles Hollander, QC, sitting as a deputy judge of this division, set out the background to this probate action and counterclaim in his judgment of 12 July 2011 [2011] EWHC 1773 (Ch) on the preliminary issue relating to the domicile of the deceased, Owen Robert Treharne Davies. I …Continue reading "Morris v Davies & ors [2012] EWHC 1981 (Ch)"