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Oliver appeared for the claimant in this contested probate matter.  The claimant client obtained probate of her mother’s last will in the face of challenges based on testamentary capacity, knowledge and approval, undue influence, and because the original will was not available.

In a separate costs judgment, Oliver’s client was awarded indemnity costs and costs out of the estate.

First, the judge rejected the first defendant’s attempt to rely on the second limb in Spiers v English, being that her knowledge and means of knowledge reasonably justified an investigation of the matter such that there should be no order as to costs.  The judge concluded that estrangement was not of itself a ground for suspicion – “people fall out”.  Further the first defendant took no steps to obtain the deceased’s medical records before entering her caveat or issuing her counterclaim, when she could have done so, and had she done so she would have seen there were no grounds for investigation.

Second, the judge ordered that the first defendant to pay the claimant’s costs on the indemnity basis.  Matters which took the case out of the norm were that:

  • the first defendant’s case was “speculative, weak, opportunistic or thin” since there was no evidence that pointed in her favour and all the evidence pointed against her, from before proceedings were issued;
  • the first defendant’s concessions in her late skeleton filed the day before trial should have been made “…months, if not years before.” In particular, it had caused the claimant to have to fly from Australia to give unchallenged evidence for no more than 5 minutes;
  • the first defendant had unreasonably refused “offer after offer” made by the claimant as the proceedings progressed.

Third, the judge ultimately granted probate of the 2014 will to the claimant as a residuary legatee, because the firm which had been named as executors had been dissolved.  Accordingly, the judge further awarded the claimant an indemnity for her costs from the estate since she had taken the steps to propound the will which an executor should have, under the principle most recently stated in Worby v Rosser.