ON APPEAL FROM CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE MCCAHILL QC)
Strand, London, WC2A 2LL
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Lord Justice Ward:
"In view of the deceased's connection with Norway you need to find out whether the alterations were made in that country or whether at the date of the Will or the date of her death the deceased was domicile in, habitually resident in or a national of Norway. If she was you will need to establish whether the alterations amount to a valid revocation or partial revocation of the Will under Norwegian law."
From what I can understand the respondents were content to proceed and may well have advised the Probate Registry that they were content to proceed on the basis that the deceased remained domiciled in England.
"The deceased was a citizen of Norway and retained her domicile in this country [I think that should be 'that country']. She even remained on the Registry of Residence...in Norway. Norwegian law is therefore applicable as per Tristram & Coote..."
"My submission is that the defendant should be ordered to pay the costs of the claimant in this trial of the issue of domicile. First, probate litigation -- and this is part of a probate action -- is hostile litigation and the general rule is costs follow the event. Secondly, in my submission the contention in the context of this particular highly contentious probate litigation, the contention that the deceased was domiciled in Norway is in no way less contentious than the contention that she did not properly execute the will or executed it under undue influence. It is in every way as contentious an issue as either of those and in the case of either of those, if the issue was brought to trial and lost costs would indisputably follow the event."
"As for costs, I do think it fair to remind you, your honour, and my learned colleague that we were ordered by the decision of Mr John Jarvis QC on 15 September this year to limit this trial which was set by him to occur today, yesterday and today, and, therefore, in the light of what we had come here for this purpose to clarify where we stand with regard to domicile as a preliminary issue. I do think it is fair to ask you to award the costs from the estate."
"This is a case in which the claimants held no doubt themselves about the domicile of the deceased, in that they swore the necessary affidavit to obtain probate asserting the fact that the deceased was domiciled in England and Wales.
They, therefore, did not ask the court to resolve the matter. Had they done so, by asking for directions, it might well have resulted in an order that the estate should bear all costs because everybody benefited from the resolution of that particular point. However, it seems to me that this was and is hostile litigation.
The point of domicile has been raised. It was open to the defendant to raise it or not raise it, but raise it she did. Accordingly, it has been necessary for the matter to be resolved. It was a contentious issue. It has remained contentious, as the skeleton arguments and submissions have demonstrated, but it seems to me to be one in which there was a clear winner and a clear loser against the background of adversarial litigation.
In my judgment, and in exercising my discretion, I conclude that the merits of the case require that the defendant should pay the claimant's costs."
"In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them."
"The trend in recent cases has been to narrow rather than extend the circumstances in which the old Chancery rule prevailed."
Order: Application adjourned to be restored to Ward LJ in January 2012