Last summer I secured a victory for my client in McCabe v McCabe [2015] EWHC 1591, a contentious probate dispute about an elderly testatrix’s will. The case was an important re-examination of the presumption of testamentary capacity and the strong evidence required to rebut it.  But, in this blog I want to touch on the issue of costs, which followed the judgment. In particular, who should be responsible for the executor’s costs of dealing with the proceedings?

The claim was issued by my client Stephen McCabe who wanted to prove his mother’s will. The claim was issued against his brother Timothy who had an interest in the outcome as he refuted the bill. Stephen also joined the solicitor/executor to the proceedings on the basis that he had drafted the will, and so had an interest in the Court’s decision about its validity.

Timothy defended Stephen’s claim and issued a counter claim. The solicitor stayed neutral in the normal way.

Stephen won the case and so the usual rule about the costs of the action applied: Timothy had to pay Stephen’s costs. However, there was a dispute about the solicitor/executor’s costs. Timothy alleged that it had been unnecessary for Stephen to join the solicitor/executor; that the solicitor had not stayed entirely neutral because he had acted briefly for Stephen before Anthony Gold took over; and Timothy alleged that the solicitor had caused the costs to increase because he had not properly complied with the ‘golden rule’. Timothy submitted that the executor’s costs should be paid by the estate (which would in effect have meant Stephen) or that he should not have his costs at all.

The general rule is that where a person has been a party to probate proceedings in the capacity of trustee or personal representative, that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate.; see CPR 46.3.

There is a prima facie right of a personal representative to recover his costs from the estate unless he is deprived of them by order of the court; see, for example, Re Plant’s Estate [1926] P 139, CA, and Re Cole’s Estate (1962) 106 Sol Jo 837 (Karminski J).

The conclusion of Jeremey Cousins QC, taking in to account the above, and dismissing Timothy’s allegations was with reference to Norris J’s reasoning (with modifications appropriate to this case) in Wharton v Bancroft at para 27 – “There is no reason in justice why [the executor’s] costs of attending to hear and to respond to the personal criticisms of him and to address the court as to the circumstances in which the [2011] Will was produced ... should be borne by [Stephen].” The solicitor’s costs were incurred as a direct result of Timothy’s sustained attacks on the validity of the Will, and the part which Mr Madams had played in the making of that Will. Timothy was unsuccessful. He should be responsible for the costs.

Pausing for thought, it is nevertheless prudent for a claimant to consider whether to join an executor to contentious probate proceedings. Does your case rely on information from the executor such as a will file or evidence about the circumstances the will was made? A solicitor/executor would normally charge the estate for carrying out work in relation to a claim. So if you are likely to succeed, do you want that executor’s costs paid for by the estate or the losing party personally? If it is the latter it is probably worth joining the executor, though consider carefully your own client’s costs exposure if the executor does not stay neutral.