In the recent case of Morris v Browne & another  the court revoked a Grant of Letters of Administration and made an order for costs on the indemnity basis against the purported administrators.
The defendants, who were two of the deceased's children, obtained a grant on the basis that the deceased died intestate. Under the Intestacy Rules the defendants stood to receive a share of the estate as two of the deceased's children. However the claimant, another daughter of the deceased, located a will which appointed her as the sole executrix and main beneficiary. She therefore applied to court for revocation of the Grant of Letters of Administration.
Issue for the Court
The defendants did not oppose the application for revocation, so the key issue for the court was the question of what costs order to make.
Under Civil Procedure Rule 44.2(1) the court has discretion as to whether costs are payable by one party to another and the amount of those costs. Costs are usually awarded on the standard basis, which provides that they must not have been unreasonably incurred or be unreasonable in amount (CPR 44.3(1)) and only costs that are proportionate are to be allowed but that if there is any doubt, the doubt will be resolved in favour of the paying party (CPR 44.3(2)). Costs which are disproportionate may be disallowed even if they were reasonably or necessarily incurred.
In the alternative costs can be awarded on the indemnity basis so that if there is any doubt as to whether a cost has been incurred reasonably or is reasonable in amount, the doubt is resolved in favour of the receiving party: CPR 44.3(3). On the indemnity basis the receiving party can therefore expect to receive a greater proportion of their costs (and possibly all of their costs) from the other party.
The court noted that the defendants had been aware that the deceased may have made a will when they applied for the Grant of Letters of Administration. As a result, the court ordered that they pay the claimant's costs on the indemnity basis.
This case is a warning to anyone applying to take out a Grant where there is an intestacy, to ensure they investigate, as thoroughly as possible, whether there is a will. The oath for administrators requires them to swear that the person died intestate. The responsibility of making that oath that should not be taken lightly.