Probate Challenger Ordered To Pay Indemnity Costs After Maintaining Baseless Opposition For Eight Years

The substantive proceedings concerned the validity of the will of the deceased, dated 12 June 2014 [§6]. The claimant, Fiona Jane Burgess, sought a grant of probate in solemn form of this will. The first defendant, Julie Elizabeth Whittle, opposed the grant, challenging the will on the grounds of lack of testamentary capacity, want of knowledge and approval, undue influence, and the absence of the original will [§17]. The second defendant, Robert Paul Rowell, did not participate in the proceedings.

The deceased died on 13 April 2017 [§6]. In May 2017, the first defendant, then acting in person, lodged a caveat against the grant of probate [§6]. The originally appointed executor, Abbotts Wills and Probate Services Ltd, was dissolved in late 2020 before the caveat was lifted [§6]. The claimant issued the present claim on 7 September 2023 – more than six years after the death [§21]. The first defendant served a defence and counterclaim in October 2023 [§7].

A key procedural feature was the first defendant’s late application in October/November 2024 for permission to instruct a joint expert on testamentary capacity, which was granted [§10-11]. Notably, at the first Case and Costs Management Conference in August 2024, the first defendant had expressly confirmed she was not seeking expert evidence on capacity [§8, §21]. The joint expert’s report, produced in March 2025, concluded that the deceased had testamentary capacity when making the will [§13].

On the day before the trial was due to commence, 13 October 2025, the first defendant, by then legally represented, served her skeleton argument conceding the issues of testamentary capacity and undue influence and declaring neutrality on the remaining issues [§17]. The trial consequently lasted less than an hour [§17]. In the substantive judgment handed down on 16 October 2025, the court held the 2014 will to be valid and ordered that a grant issue to the claimant [§1]. The matter then proceeded to a determination on costs.

Costs Issues Before the Court

The court was required to determine several consequential costs issues [§1]. The primary issue was whether the general rule that costs follow the event should apply, or whether the case fell within the second probate exception from Spiers v English, which could justify a departure from that rule [§5, §18]. Subsidiary issues included whether any costs order against the first defendant should be on the standard or indemnity basis [§23]; the amount of any interim payment on account of costs [§26]; whether interest should be awarded on costs [§28]; and whether the claimant was entitled to an indemnity from the estate for any costs not recovered from the first defendant [§29-32].

The Parties’ Positions

The claimant sought an order that the first defendant pay her costs of the claim on the indemnity basis, to be assessed if not agreed, together with a substantial interim payment [§1]. The claimant also sought an order that she be indemnified out of the estate for any costs not recovered from the first defendant [§1]. The claimant argued that the general rule on costs should apply, as the first defendant’s challenge to the will was speculative, weak, and pursued unreasonably [§23]. She highlighted the first defendant’s last-minute concession, the fact that the claimant had travelled from Australia for a trial that became unnecessary, and a history of settlement offers from the claimant that were rejected by the first defendant [§23-25].

The first defendant did not seek her own costs but argued that there should be no order as to costs between the parties [§1]. Her primary submission was that the circumstances engaged the second probate exception from Spiers v English, as her knowledge and means of knowledge had reasonably led to an investigation of the will’s validity [§5]. She contended that this provided good reason to depart from the general rule that the unsuccessful party pays the successful party’s costs [§5].

The Court’s Decision

The court ordered that the first defendant pay the claimant’s costs of the claim on the indemnity basis, with a detailed assessment if not agreed [§22]. It also ordered an interim payment on account of £109,000 [§27], awarded interest on costs [§28], and granted the claimant an indemnity from the estate for any costs not recovered from the first defendant [§32-33].

Rejection of the Second Probate Exception

On the incidence of costs, the court held that the second probate exception did not apply [§18, §22]. It found that there was no reasonable basis for the first defendant to suspect the will was invalid [§19-22]. The estrangement from the deceased was not a ground for challenging capacity or knowledge and approval [§19]. People fall out and testators are entitled to change their minds [§19]. The will was made professionally and independently [§19], and the beneficiary change kept the gift within the family by giving the first defendant’s share to her own two sons [§19].

Crucially, the first defendant had taken no substantive investigative steps for years despite having access to all relevant material [§20-21]. In September 2022, the will-writers confirmed they had seen the original will after the deceased’s death, removing any basis for suspecting destruction [§20]. In February 2023, the claimant sent copies of the will file and medical records, neither of which gave grounds for suspicion [§20]. The first defendant did not herself seek medical or social care records until making her third-party disclosure application in October 2024 – more than seven years after the death [§20-21]. When these records were produced, they showed no grounds for suspicion [§21].

The court concluded: “Overall, on these facts, and in my judgment, there is simply no room for the application of the second exception in Spiers v English to operate. The first defendant had no reasonable basis to suspect that the 2014 will was invalid, and therefore no reason to investigate” [§22].

Indemnity Costs for Conduct “Out of the Norm”

The court found the first defendant’s conduct to be “out of the norm”, justifying an indemnity costs order [§23-25]. This was based on three main grounds.

First, the case was “entirely speculative and objectively weak” [§23]. All evidence in the first defendant’s possession before the claim was issued pointed to the will’s validity, with none pointing to invalidity [§23]. The first defendant challenged the will on four separate bases, including undue influence for which there was “simply no evidence whatever” [§23]. She did not seek evidence on incapacity until more than a year after the claim was issued, and when obtained, that evidence was also against her case, including the expert report [§23].

Second, the first defendant effectively conceded the case only on the day before trial via an overdue skeleton argument [§24]. By that time, the claimant had flown from Australia to give evidence. The court held: “This should never have happened” [§24]. The decision to concede should have been taken “months, if not years before” [§24]. Importantly, the fact that the first defendant was a litigant in person for much of the proceedings “cannot excuse her in this respect” [§24]. The procedural rules apply equally to litigants in person and represented parties [§24].

Third, the claimant made repeated settlement offers, all of which the first defendant refused [§25]. Although the offers were technically flawed because they involved discontinuance rather than a court order under CPR rule 57.11, “if the first defendant had otherwise been prepared to accept one of them, a means would have been found to implement it” [§25]. The court regarded the first defendant’s conduct overall as “grossly unreasonable, taking more than eight years to decide that there was in fact no basis for challenging the validity of the deceased’s will” [§25].

Payment on Account of Costs

Regarding the payment on account, the court noted that the usual practice of ordering 90% of an approved costs budget does not apply where indemnity costs are awarded [§26]. This is because CPR 3.18, which prevents departure from budgeted costs without good reason, does not apply to indemnity basis assessments [§26]. As Coulson LJ observed in Burgess v Lejonvarn, “if there is an order for indemnity costs, then prima facie any approved budget becomes irrelevant” [§26].

Nevertheless, having regard to the claimant’s varied budget of £109,133.50 (excluding VAT) and her evidence of total costs incurred of approximately £155,000, the court considered £109,000 to be a reasonable sum to order as an interim payment [§27]. The court acknowledged that the budget included some costs not actually incurred (such as the second day of trial and mediation disbursements) but also that there were other incurred costs not included in the budget [§27].

Interest on Costs

The court awarded interest on the claimant’s costs at 2% above the Bank of England base rate from the dates on which she paid her legal costs invoices until the date of judgment [§28]. This was to compensate the claimant for the loss of use of her money [§28]. The statutory Judgments Act 1838 rate of 8% per annum would apply to interest accruing after judgment [§28].

Indemnity from the Estate

Finally, the court held that the claimant, as a successful party propounding a will where the executor had not acted, was entitled to the same costs indemnity from the estate that an executor would have received [§29-33]. This principle, derived from Sutton v Drax (1815) 2 Ph 323 and confirmed by subsequent authorities including Wilkinson v Corfield (1881) 6 PD 27, provides that where a legatee propounds a will and succeeds, “thereby fulfilling the duty of the executor, the legatee is entitled to have his expences paid out of the estate of the deceased” [§29, §31].

The court noted that the claimant had filed the required notice of her intention to seek costs from the estate on issue of the claim, as mandated by CPR PD 3E, paragraph 5.4 [§32]. Accordingly, the claimant was entitled to her costs of the claim on the indemnity basis out of the estate, to the extent not recovered from the first defendant [§33]. Since the claimant was to be administratrix of the estate, it would be her duty to seek to recover those costs from the first defendant in the first instance [§33].

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