In the probate case of Richefond & Ors v Dillon & Ors  EWHC 2796 (Ch) (10 November 2023), the court deliberated on cost allocation and whether the estate or another party should bear the costs. The court determined that Kenneth Grizzle’s will was partially valid, but the gift of residue failed due to Kenneth’s lack of knowledge and approval, resulting in the estate devolving under intestacy rules.
Had the will been fully effective, it outlined specific dispositions, including a property gift to Kenneth’s partner, Theodora, and residue to her. However, the court’s decision altered this, leading to the division of residue among Kenneth’s children.
Concerning costs, the court exercised its discretion under CPR r.44.2(1), typically requiring the unsuccessful party to cover the successful party’s costs. Exceptions were considered, with the first involving the deceased being the cause of litigation. However, blame here rested with Mr. Coe and WSL, Kenneth’s agents. The second exception, circumstances prompting a reasonable investigation, wasn’t fully applicable as the claimants initiated proceedings without adequate pre-action investigation.
Consequently, the court ruled that neither party should bear the costs of the other. The claimants, acting in Theodora’s interest, were not entitled to indemnity from the estate. The Grizzle Children’s costs would be covered from the residue, preventing an unwarranted windfall for Lee and Kym. Although mediation wasn’t proposed or explored, the court deemed both parties’ conduct in this regard neutral. It is advisable that in wills and inheritance cases, parties consider offering to mediate, as such an offer might impact the court’s decision.
In summary, the court decided that neither side should assume the costs of the other, and the Grizzle Children’s costs would be covered from the residue.