When the validity of a Will is challenged in Court, the Judge will decide how the costs are paid and how much these will be. In some situations, the Court orders that the costs are paid out of the estate or even makes no order as to costs whatsoever.
The general principle is that the losing party pays some of, or all, the winning party’s costs. For example, this could include paying the winner’s legal fees, court fees and the costs of any expert witness. This default rule is explained in more detail in the Civil Procedure Rules of England and Wales.
That being said, Judges have a lot of flexibility when making costs orders. In some cases, a Judge will decide not to follow the “loser pays” principle. One such example is the case of James v James  EWHC 242 (Ch).
The case of James was brought by RJ, who was unhappy with the Will of his late father (CJ). RJ had spent several years working for CJ’s farming and haulage business, living rent-free in a property owned by CJ. The family partnership was eventually dissolved, and RJ received the haulage business and the property he was living in. RJ claimed that CJ also promised he would eventually receive the family farming business and a farm.
In fact, CJ’s Will left all his land and farming business to his wife and two daughters. RJ argued that he should have received the farm and farming business on the grounds of proprietary estoppel. More information about proprietary estoppel claims can be found on our blog. RJ also argued that his father’s Will was invalid because, at the time it was made, CJ had lost the capacity to make a Will, known as testamentary capacity.
Unfortunately for RJ, he lost on both grounds at the end of a long trial. He was ordered to pay the costs of the Defendants – his mother and sisters – for the failed proprietary estoppel claim. As is common when a trial lasts more than a day, the Judge ordered that the costs should be “assessed if not agreed”. This meant that, if the parties were not able to agree the amount of the costs owed by RJ to the Defendants, the Court would decide.
The most interesting part of the Judge’s decision, however, is that he made no order on the costs of the Will validity challenge. This meant that, even though RJ lost on this ground, he only had to pay his own costs for this part of the claim. The Defendants, even though they won, would have to pay their own costs too.
The Judge made this unusual decision because he felt it had been reasonable to question the validity of CJ’s Will. There were serious doubts about CJ’s mental capacity which needed resolving. The Judge felt RJ should not be penalised for losing on this ground. He summarised his views as follows:
“[RJ] pursued the challenge to the [W]ill because there was a reasonable basis for doing so. There was medical evidence and factual evidence tending to suggest that the testator’s capacity was doubtful. The expert medical evidence (on both sides) reinforced that view. The fact the so-called “golden rule” [of getting a doctor to assess the testator’s capacity] was not followed was also significant. There being no contemporary medical evidence, all that was left was for the court to decide. In my judgment, it was reasonable for the claimant to pursue the will challenge, even though, at the end of the day I have held that the testator had capacity to make his will when in fact he made it.”
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