England and Wales High Court (Chancery Division) Decisions

THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th April 2006

The Deputy Judge:

1. In May 2005 the present action was started by Mr Robert Culver. He is now seeking permission under Rule 57.11 of the CPR to discontinue the action. The application is made under that rule because the action, being a probate claim, is not subject to Part 38 of the CPR (see Rule 57.11(1)). The application was made on the day when the action was due to come on for trial, notice of the application having been given only on 27 March 2006.
2. The first question is whether to allow discontinuance. If discontinuance is allowed, questions arise as to the costs of the action

Background

3. Mrs Jean Wylde ("the Deceased") died on 3 February 2005. She was a widow, having been married twice. By her first marriage she had three children. One of the children is the Defendant. By a Will dated 20 November 2003 ("the 2003 Will") the Defendant had been named as executrix. Probate of the 2003 was granted to the Defendant out of the Oxford District Registry on 16 February 2005. The reason why probate was sought and granted so promptly after the death of the Testatrix was because the Defendant, who had been in England during the Deceased's last illness, lives and works in the United States and was under pressure to return there.
4. The Deceased's second husband had had six children by a previous marriage. One of these is the Claimant. There were no children of the marriage between the Deceased and her second husband.
5. At the time of the Deceased's second marriage in 1974 she and her husband already had several grandchildren between them. Over the years many more were born, so that by the time of the Deceased's death there were 29 in all.
6. The Deceased and her second husband were not wealthy. Their principal asset was a comparatively modest house in Reading, where they lived. On 16 August 1991 they made wills by which, broadly speaking, each left to the other (if surviving) all her or his assets, including the house, and subject to that left her or his estate to 17 of their grandchildren but with the Defendant having expressly a right to live in the house should she so wish. These 17 grandchildren, of whom 8 or 9 were children of the Deceased's children, may have been all the grandchildren born by 1991. Certainly there were further grandchildren born later. The Deceased's second husband died in 1993.
7. In the Will made by the Deceased in 1991 ("the 1991 Will") the Claimant was named as an executor along with the Defendant. So far as is known, the Deceased had not sought to change the 1991 Will or to make a fresh will until 2003. The 1991 Will was professionally drawn. The 2003 Will was not. It is written out in the manuscript of the Defendant.
8. In the 2003 Will the Deceased left a gift of £1000 apiece to each of 3 of her husband's grandchildren, with 3 more of those receiving £500 each. These bequests depended upon the Deceased's net estate being greater than £10,000. Subject to this her estate was to be divided between her 3 children with a deceased child's natural children taking in the event of their parent pre-deceasing the Deceased.
9. The last several lines of the 2003 Will contained a statement explaining that the Deceased felt that her husband's family had not welcomed her into the family and had had no contact and should not benefit under her Will. It continued by explaining, so it seems, that these people should not be welcomed at her funeral. An exception was made for the Claimant and his family and for one of his brothers, Kevin Wylde, and his family.
10. The 2003 Will bears an attestation clause and signatures indicating that the 2003 Will had been signed by the Deceased in the presence of a D Hiscock and a P Hiscock. The first of these is Mrs Doris Hiscock; the second is her son Patrick. Mrs Hiscock is the Defendant's mother-in-law.
11. It is said on behalf of the Claimant that the content of the 2003 Will was a great surprise to him and his siblings, who had been aware of the 1991 Will.

i) His brother, Kevin Wylde, says that he had had a conversation with the Defendant in November 2003, when she was visiting her mother. In this conversation, says Kevin Wylde, the Defendant told him that the Deceased had that day been to solicitors and had altered her will, principally to remove as beneficiaries four of the Wylde grandchildren with whom the Deceased had had no contact for some time. He also says that he was told he had been made an executor.

ii) It is said by the Claimant and his son that at a dinner with his family at his house on Boxing Day 2004 the Deceased had announced that all her inheritance was going to the grandchildren and that "no adults would get anything".

12. It is further suggested by the Claimant that the Deceased's relations with Mrs Hiscock were difficult, that the Deceased did not like Mrs Hiscock, and that it is improbable that the Deceased would have turned to Mrs Hiscock to find a witness to a Will. Mrs Hiscock has stated that she was telephoned by the Deceased on 20 November 2003 asking to come round to see her; but the Claimant has given evidence that the Deceased, who unquestionably had impaired hearing, did not use the telephone. Recent disclosure of telephone bills reveals that on 20 November 2003 there was no call from the Deceased's house to Mrs Hiscock's house by land-line.
13. The possibility that Mrs Hiscock may not in truth have witnessed the signing of the Will is suggested by the fact that the signature used on the 2003 Will does not appear to be Mrs Hiscock's normal signature: it did not resemble the signatures on two letters, one of which did take the form of typed statement, sent to the Claimants after the Deceased's death and before the action was started. As to this it was explained by the Defendant's Solicitors in correspondence shortly before this action was started that "when asked to 'sign' formal documents [Mrs Hiscock] 'prints' her name in contrast to the 'signature' she places on more informal documents such as letters."
14. It is also said by the Claimant and by his brother that following the Deceased's death the Deceased's affairs were dealt with in a rushed and secretive manner, causing suspicion. In particular it is said that the Claimant asked to see a copy of the Will, but was not shown one; that probate of the Will was obtained with undue haste; and that the sale of the house was rushed and not handled with candour.
15. This action was started on 17 May 2005. On about the 18 February 2005 the Claimant had sought to lodge a caveat, but had learnt shortly afterwards that probate had already been granted. Correspondence ensued between the Claimant and solicitors on the one side and the Defendant and solicitors on the other. This concerned both the making of the 2003 Will and the proposed sale of the Deceased's house. The final impetus for the action came when, probably as a result of confusion, the Claimant thought that the house was about to be sold with a risk of the proceeds being distributed.
16. The claims made in the Particulars of Claim are (a) that the 2003 Will was executed without the Deceased's knowledge and approval, the circumstances being such that the burden of proving the contrary lies with the Defendant; and (b) that the Defendant should in circumstances prove that the 2003 Will was duly executed. The prayer seeks revocation of the probate granted on 16 February 2005, that the court should pronounce against the validity of the 2003 Will, and that the court should pronounce in solemn form for the 1991 Will.
17. The Defendant has served only a Defence, not making any Part 20 Counterclaim: she is not seeking to have a grant of probate in solemn form. No one has sought in the proceedings to require the Defendant to obtain such a grant, putting the Defendant to proof of due execution.
18. As the action has proceeded there has been no development which has radically changed matters. The delivery of witness statements showed some small refinement in the explanations previously given as to the manner of the execution of the 2003 Will. Later a handwriting expert has considered what appears to be Mrs Hiscock's signature on the 2003 Will, and has given a somewhat inconclusive report. And the disclosure of telephone records to which I have referred has shown that Mrs Hiscock may well have been mistaken in stating that on the day when the 2003 Will was made she was telephoned by the Deceased.
19. With this introduction I turn, to the question of discontinuance, before considering the arguments on costs.

Permission to discontinue

20. Probate claims are not simply proceedings between the parties. There are likely to be others affected by the outcome of the proceedings. The present case is no exception. There is no doubt that the Count may refuse permission to discontinue, where it considers that there is a serious question which should he decided by the Court.
21. Mr Bromilow, Counsel for the Defendant, drew my attention to the case of Green v Briscoe [2005] All ER (D) 96, in which the Court had dismissed an action seeking, among other matters, an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor counterclaimed for a grant of probate in solemn form. One member of the family had acknowledged service of the action and had indicated that he wanted to be satisfied that the will had been properly executed but did not intend to put forward any positive case. Although the action was dismissed, permission was refused to the defendant to discontinue the counterclaim: this was directed to be continued against the family member, because a serious issue had been raised as to the validity of the will. In effect the defendant executor was required to continue to seek an order for a grant of probate in solemn form.
22. In the present case the Claimant is seeking to argue that discontinuance should be permitted, but that either (a) the Claimant should be paid costs out of the Deceased's estate, or (b) there should be no order made as to costs. On behalf of the Claimant Miss Hargreaves drew my attention to the passage in Parry & Clark, Law of Succession, 11^th edn para 19-43. The general rule in probate actions is no different from ordinary actions: costs follow the event. To this there are exceptions. As to this the editors comment:

"The special circumstances justifying a different order may be classified under two heads, ie. (i) fault of the testator or the residuary beneficiary — costs out of the estate, (ii) case for inquiry — no order as to costs."

23. Mr Bromilow has pointed out that the Claimant is faced with something of a dilemma in seeking to discontinue while seeking either of these orders. He submits, and I think rightly, that there is no basis for finding that costs should be paid out of the estate. Therefore as to costs the question is whether or not (and I speak loosely) there was a case for inquiry. That there was such a case is urged by Miss Hargreaves, drawing attention to various of the matters I have referred to in describing the background. But if there was such a case, there still is: there has been no dramatic change in the strength of the case since the outset. It is here that the difficulty arises.

i) If on the one hand, a serious issue has been raised as to the due execution of the 2003 Will, it would quite probably be inappropriate to allow discontinuance.

ii) If on the other hand, no serious issue has been raised, it is difficult to see why the Claimant should avoid having to pay the costs of the action on the action being discontinued.

24. Shortly stated, do the matters put forward by Miss Hargreaves to show that there should be no order as to costs on discontinuance lead to the conclusion that there should be no permission to discontinue?
25. There are three documents which set out on behalf of the Claimant matters said to raise concerns about the Deceased's knowledge and approval of the 2003 Will or its due execution. These are (a) a letter dated 13 April 2003 from the Claimant's Solicitors, (b) the Particulars of Claim in this action, and (c) the Skeleton Argument provided for the present hearing. In each case the points made have been broadly similar. In effect these are:

i) the circumstances surrounding the making of the 2003 Will, in particular the facts that the 2003 Will was written out by a principal beneficiary and was purportedly witnessed by someone the Deceased did not like, whose signature did not seem to be genuine, following a telephone conversation the Deceased was unlikely to have made;

ii) the fact that probate was obtained so promptly;

iii) discrepancy between the contents of the 2003 Will and what was supposedly told to Kevin Wylde and what was said by the Deceased at the Boxing Day dinner;

iv) the fact that the sale of the house had been progressed in a secretive manner and with apparent haste to distribute the proceeds of sale; and

v) the lack of explanation for the decision of the Deceased to replace the 1991 Will.

26. Of these points there is nothing in the second or the fourth. What was done does not, on examination, suggest anything sinister or underhand. The fifth I find unimpressive. The fact is that by 2003 it would have been quite reasonable for the Deceased to change the dispositions contemplated by the 1991 Will. For one thing she now had more grandchildren than in 1991. It is quite understandable that she might have decided to be more discriminating in the selection of beneficiaries.
27. In relation to the third of these points Mr Bromilow has rightly drawn attention to the fact that there is a conflict of evidence concerning the conversation between the Defendant and Kevin Wylde. As he rightly submits, I cannot assume that Kevin Wylde's version of events is correct. Indeed, given that the Claimant is now seeking to discontinue the case, it may possibly be that I should treat the Defendant's version as more likely to be true. As to the Boxing Day dinner announcement, even if made as suggested, there are possible explanations that are consistent with the 2003 Will having been duly made as the Deceased's last Will. The evidence of the announcement does not compel, and barely advances, the conclusion that the Deceased had not duly executed the 2003 Will with full knowledge and approval of its contents.
28. What then of the matters in sub-paragraph (i)? Whatever grounds these might provide for questioning the making of the 2003 Will they do not in my judgment raise a serious issue which should lead me to refuse permission to discontinue and instead to make directions for a trial. As in the case of conversation between Mr Kevin Wylde and the Defendant, parts of what is relied upon (as, for example, the Deceased's alleged dislike of Mrs Doris Hiscock and her unwillingness to use the telephone) turn on disputed evidence. For the rest, though it may be possible that cross-examination will demolish the statements and written evidence of the Defendant, Mrs Doris Hiscock and Mr Patrick Hiscock, that result does not look likely on the materials at present before the Court.
29. I am therefore satisfied that permission to discontinue may appropriately be given. But this then leads to the questions of costs. If there is not a serious issue, was there ever? If not, on what ground can the Claimant possibly avoid having to pay the Defendant's costs, much less obtain an order for costs? This, in a nutshell, is Mr Bromilow's argument

Costs

30. Rule 57.11 of the CPR differs from Rule 38.6, the general rule dealing with discontinuance, in that in probate actions there is no stated presumption that a discontinuing claimant should pay the costs down to the discontinuance. However I approach the question of costs on the basis that the Claimant, in seeking to discontinue, should ordinarily pay the costs, and that the onus lies with him to show why there should be some different order,, Shortly stated, in the absence of some good reason for a different order, it can be taken that the action was wrongly brought. This, after all, would be the starting point if the action went to trial and was dismissed.
31. Earlier in this judgment I have rejected the argument that the Claimant's costs should be paid out of the estate. Little needs to be said about this submission. In my judgment the Deceased did nothing of consequence to invite or encourage the Claimant to challenge the 2003 Will. I fail to see that the Defendant or her siblings did anything to justify their having to bear the Claimant's costs of these proceedings.
32. I have found the question whether there should be no order as to costs much harder.
33. I can see how the Claimant might reasonably have thought it right to start the action; and I can also see how the Claimant might reasonably have thought it right to begin and continue the action. The point here is that in starting and continuing the action the Claimant may very well have been reasonable in. believing that Mr Kevin Wylde's description of the conversation with the Defendant was true, that the Deceased did dislike Mrs Doris Hiscock and that the Deceased did not use the telephone, and that Mrs Hiscock's signature on the 2003 Will was suspicious. In short, so the argument runs, the Claimant acted reasonably in. seeking to challenge the 2003 Will.
34. In the event I have concluded that this argument is to be accepted. I am not inclined to doubt the sincerity of the Claimant; and on this basis I have decided that the Claimant should not be ordered to pay the costs on discontinuance.
35. As it seems to me, the "case for inquiry no order as to costs" principle requires examination of the conduct of the Claimant in bringing and pursuing the action. The principle is given particular expression in one rule in the CPR. Special provision is made for the case where a defendant to a probate action gives a notice in his defence along the lines given in the Green v Briscoe case, that he will not raise any positive case but nevertheless insists on the will being proved in solemn form and the attesting witnesses being cross-examined in such a case according to Rule 57.7(5)(b) of the CPR, "the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will". In my judgment, a reasonable but nevertheless ultimately mistaken belief in a state of affairs which if not mistaken would lead to a will being pronounced against does amount to a reasonable ground for opposing a will.
36. The principle is not confined to cases where a defendant has given such a notice as referred to in Rule 57.7(5). It is of general application. And in its general application also it at the least allows, if it does not require, the conduct of the unsuccessful party to be looked at. This is supported by the editors of Parry & Clark, Law of Succession, at para 19-45: this contains the statement that "It is ... necessary to consider whether the losing party had reasonable grounds, looking to his knowledge and means of knowledge, for the issues he raised".
37. In other words the dilemma postulated by Mr Bromilow is not so stark as he would have it. This is because the considerations are in fact different. As to discontinuance the question is whether, viewed objectively, there is at the time of discontinuance a serious issue to be resolved in relation to the will. As to costs the question is whether viewed from the perspective of the discontinuing party the opposition has been on reasonable grounds.
38. Were it not for one matter I would have had no hesitation in concluding that there should be no order as to costs. This is that the Claimant is now discontinuing. Although he did not quite articulate the point in this way, Mr Bromilow argued that the discontinuance shows that the Claimant has no faith in his case, that therefore the Claimant cannot have had any faith in the case, and that therefore the case should never have been brought. This is in effect the argument used by Mr Bromilow to support a submission that the Claimant should be ordered to pay costs assessed on an indemnity basis.
39. The explanation given on behalf of the Claimant for the decision to discontinue is not detailed. What I gain from what has been said by his solicitor and by Miss Hargreaves is that the Claimant has got cold feet: his perception of the case now is that it is weak, and he is plainly worried about costs. But I do not think it right to believe that the Claimant never had faith in the case or that he has at any time pursued the case in bad faith, believing the case to be unjustified. As I mentioned above, I am not inclined to doubt the Claimant's sincerity.
40. In the event, therefore, I shall give permission to discontinue but shall make no order as to costs.
41. Given this decision, it is not necessary to consider what basis of assessment should be ordered or whether any third parties should be joined in the proceedings.