Who Pays The Costs When A Will Challenge Is Abandoned Mid-trial? Goodwin v Avison & Others [2021] EWHC 2356 (Ch)

• Published date: 16 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Gatehouse Chambers
• Author: Mr William Golightly

Goodwin v Avison & Others [2021] EWHC 2356 (Ch)

Summary

The High Court has provided a helpful restatement of the costs principles engaged where a will challenge is abandoned mid-trial. In essence, two costs principles apply: (1) if the Testator's conduct has led to the litigation, an unsuccessful party should get their costs out of the estate and (2) if there were reasonable grounds for challenging the will, then each party should bear their own costs. If neither principle applies, the likely outcome is that unsuccessful party should pay its and the successful party's costs. The challenge for a trial judge is that that assessment of (1) and/or (2) occurs having only part heard the evidence. In this case, HHJ Davis-White QC (sitting as a High Court Judge) was satisfied that the unsuccessful Defendants must pay their own and the Claimant's costs.

Facts

Thomas Goodwin ("the Testator"), was found by the Judge to be a 'wily' Yorkshireman, who made promises he did not keep and told people things they wanted to hear. He was a successful businessman, whose estate was worth between '3-'4 million, including a number of farms.

The Testator had protracted and bitter breakdowns in his relationships, including with his son, Gary ('the Claimant') and one of his daughters, Jacqueline (D1), which in the latter case had led to compromised proprietary estoppel proceedings in the Testator's lifetime.

In 2017, the Testator decided to make a new will ("the 2017 Will"), which he initially did by amending an existing will with the help of the Claimant's then girlfriend Ms Grime, which was later formalised and executed with the help of solicitors.

The claim was issued in May 2019 to pronounce the 2017 Will in solemn form but resisted by D1 who counterclaimed on the basis of (a) lack of due execution; (b) lack of knowledge and approval and (c) undue influence exerted by the Claimant and Ms Grime.

The remaining Defendants, D2-D5, were the children of D1. D2 initially did not admit due execution and required the 2017 Will be proved in solemn form, relying on CPR 57.5(5). D3-D5 adopted the defence and counterclaim of D1.

Following the report of a jointly instructed handwriting expert in March 2019, the Defendants abandoned their challenge to valid execution. However, D4 then decided to act in person, and in August 2020 was given permission by the trial judge to withdraw from this admission.

The position of the Defendants was thus different when the matter reached trial in August 2021.

On the sixth day...