HHJ Paul Matthews ordered indemnity costs against a will challenger who maintained baseless opposition for eight years without meaningful investigation before withdrawing all substantive challenges the day before trial, finding no reasonable grounds ever existed to oppose the professionally-drafted will.
The second probate exception, which may justify departing from the general rule that costs follow the event, applies only where the circumstances, including the knowledge and means of knowledge of the unsuccessful party, led reasonably to an investigation into the will’s validity. The reasonableness of the unsuccessful party’s conduct is a key consideration. [3], [18], [29]
An investigation into a will’s validity may be justified at the outset, but if as the case progresses the issues become clearer and the need for investigation evaporates, the normal rule that costs follow the event will apply from that point onwards. [4], [18]
Where the conduct of the unsuccessful party is grossly unreasonable, such as pursuing a speculative and objectively weak case and conceding only at the last minute, the case may be considered ‘out of the norm’ and justify an award of costs on the indemnity basis. [23], [25]
When ordering costs to be assessed, the court must also order an interim payment on account unless there is good reason not to do so. Where costs are to be assessed on the indemnity basis, an approved costs budget is not determinative of the payment on account, as CPR 3.18 does not apply. [26]
A successful party who propounds a will in the absence of an acting executor is entitled to an indemnity from the estate for their costs on the same basis as an executor would have been, to the extent those costs are not recovered from another party. [29], [31], [32]
