High Court of Justice in Northern Ireland Chancery Division Decisions

 


[2016] NICh 10	Ref:	HOR9960
Judgment: approved by the Court for handing down	Delivered:	03/06/2016
(subject to editorial corrections)*

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND CHANCERY DIVISION (CONTENTIOUS PROBATE) ________ IN THE MATTER OF THE ESTATE OF BRIAN McKENZIE (DECEASED)

BETWEEN:

DESMOND McKENZIE

Plaintiff;

and

1. EILEEN McKENZIE

2. BRIAN McKENZIE (JNR)

3. DERMOT CARROLL

4. TERESA CARROLL

5. MARGARET McKENZIE

Defendants.

________

HORNER J

[1] This is a short judgment which deals solely with the issue of costs arising out of proceedings brought by the plaintiff against the estate of Brian McKenzie Deceased (“"the Deceased”") after his death on 23 March 2011. The plaintiff, who is the son of the Deceased, sought the approval of the court for the Will of the Deceased dated 21 April 2004 (“"the first Will”") as being the last true and valid Will and Testament of the Deceased. At the same time he asked the court to pronounce against a later Will dated 24 February 2011 (“"the second Will”") on the basis that the Deceased did not have the necessary capacity to make it.

[2] Ranged against the plaintiff was Eileen McKenzie (“"D1”"), the Executrix under the second Will and a sister of the plaintiff. “"D2”" is the plaintiff’'s brother, “"D3”" is his brother-in-law, “"D4”" is married to D3 and is a sister of the plaintiff, and “"D5”" is another sister. The deceased’'s wife, Anne McKenzie, who was born on 29 November 1933, died on 14 July 2011.

[3] D2, D3, D4 and D5 were all beneficiaries under the second Will. While D3 and D4 have been actively involved in defending the claim of the plaintiff with the benefit of legal aid, D2 played no role. D5 entered an appearance but has played no active role in proceedings. D1 defended the plaintiff’'s claim on behalf of the estate until approximately 2 weeks before the date set for trial when she agreed to set aside the second Will.

[4] Under the first Will the plaintiff was left the Deceased’'s public house, subject to a right of residence in favour of the Deceased’'s wife and D5. There was also payment of £10,000 secured on the property to D4 and D5. The plaintiff was also bequeathed the house at Samsonagh Road. Farmland at Auglish was left to D1, D4 and D5 in equal shares.

[5] Under the second Will the plaintiff was bequeathed the house at Samsonagh Road and the lands at Mullylusty which the Deceased did not own. The Auglish farmlands were given to D3. The residue (which included the public house) was devised to D4 subject to the right of his wife and his daughter, D5, to reside in the dwelling house for their lifetimes and the right to be maintained and be supported by D4 out of the profits earned from the licensed premises and the shop situated thereat.

[6] D1 played a full role as executrix in defending the proceedings brought by the plaintiff to prove the first Will on behalf of the estate under the second Will. She surrendered when she saw the report and addendum from Professor Day-Cody a few weeks before the trial which report concluded that the Deceased did not have the necessary capacity to make the second Will. The report of Professor Day-Cody dated 23 July 2014 was referred to in the list of documents dated 30 June 2015. The list was served on the other defendants. None of those defendants sought to see a copy of that report until just before the trial. The defendants in general, and D1 in particular, appreciated immediately on seeing that report that the deceased did not have the necessary capacity to make the second Will and that the court would pronounce against it.

[7] In addition to issuing a writ seeking the relief that the court should pronounce validity for the first Will, the plaintiff’'s solicitors sent a letter of 14 June 2011 in accordance with the case of Larke v Nugus [2000] WTLR 1033 seeking a statement from the solicitor from the firm of Maguire and Corrigan, who apparently made the second Will, of his evidence regarding the execution of that Will and the circumstances surrounding it. This letter was only replied to by D1 on 19 October 2015 I am informed. No satisfactory explanation has been offered for the inordinate delay. It is not clear whether the blame lies with the Deceased’'s solicitor or D1’'s present solicitor.

[8] In Larke v Nugus [2000] WTLR 1033 the Court of Appeal in England emphasised that where a Will was being disputed the executors should do everything reasonable to avoid litigation and incurring substantial costs. A solicitor who had knowledge of the circumstances in which the Will calling for an investigation was made should provide a full and detailed statement of such evidence as he could give.

[9] It is the general rule in probate actions as in other actions that costs are at the discretion of the court. However, the usual order is that costs should follow the event. A beneficiary under a Will who propounds it in solemn form and obtains a decree in favour of such Will, is entitled to have his costs paid out of the estate: see Williams v Goude [1828] 1 Hag Ecc 577. So here the plaintiff should be entitled to his costs out of the estate.

[10] It has been suggested that the court should make the order for costs, not against the estate, but against D3 and D4 who were legally assisted, and D5 who was not. There is no doubt that a set off in respect of costs is possible against a legally assisted plaintiff where, for example, an award of damages is made in favour of a legally assisted plaintiff see, e.g. McWatters (A Minor) v Belfast Educational and Library Board [1996] NIQB 155.

[11] The position is rather different here. The plaintiff is seeking to set off costs which should be paid by D3 and D4, rather than the sum of money owed by the plaintiff but against various bequests or devises due, not from the plaintiff, but gifted under the Will of the deceased. That is not a set off. In Halsbury’'s Laws of England (5^th Edition) Volume 11 at page 382 it states:

“"This part of the title is concerned with ‘'set off’' (that is, where A has a claim for money against B, and B has a cross-claim for a sum of money against A).”"

It goes on to say that this can occur in the following situations, namely where B has a cross-claim against A which he can deduct from the amount paid to A and where B can legitimately raise and successfully make a cross-claim against a claim brought by A so as to reduce or extinguish A’'s claim. That is patently not the position here. Given that these are legally assisted parties, I decline to make an order against them. Their costs will be taxed under the Second Schedule and they may be liable to a charge in favour of the legal aid fund in respect of any bequests or devises they have under the first Will.

[12] The normal rule is that an executrix who proves the Will in solemn form is, as a rule, entitled to have her costs out of the estate: see Headington v Holloway [1830] 3 Hag Fee 280, at 282.

[13] This applies if the executrix responds to an attempt by another party to propound another Will. It is unnecessary for her to make an application to the court for her costs, as she can take them out of the estate as of right. Indeed, if she does get an order, she has to tax them, and therefore will, in most circumstances, be better off not obtaining an order.

[14] Where an executrix puts forward a Will which she should have known could not be supported, she will as a general rule be condemned in costs: see Rennie v Massie [1866] LR 1 P&D 118.

[15] As Tristram and Coote’'s Probate Practice (31^st Edition) says (and see the general discussion at paragrpahs 40.07 and 40.08):

“"But if an executor had good reason for supposing that a testator was of sound mind and capable of managing his own affairs, he will be allowed his costs out of the estate, even though the Will be proved against him on the ground of the testator’'s incapacity.”"

[16] It seems to me that up until the service of the list of documents and the inspection of the occupants in that list, and in particular the report of Professor Day-Cody, D1 as executrix could be said in one sense to be acting reasonably. However, following the receipt of the report from Professor Day-Cody, which she should have obtained within, at most, four weeks of service of the list of documents, D1 should have appreciated that she had no defence to the plaintiff’'s claim in respect of the first Will and withdrawn her defence. She ultimately so did when she saw the report shortly before the trial. Now I appreciate that D1 may feel that any fault lies with her solicitor who should have obtained the report much earlier and drawn it to her attention immediately so that he is responsible for this sorry state of affairs. That is a matter for another day and one that lies between D1 and her solicitor. It does not concern this court. The proper order is that D1 shall have her costs up to when she could reasonably have been expected to have seen the report of Professor Day-Cody, that is some four weeks after the service of the list of documents, which I estimate to be approximately 50% of the total costs. However, from that date when she should have inspected the report of Professor Day-Cody, D1, in defending the claim of the plaintiff ,caused costs to be unnecessarily incurred and which will have to be paid out of the estate. On a rough and ready calculation I conclude that the fair approach to take and the proper order to make is no order for costs either in favour of D1 against the estate (or against D1 personally). Any complaint D1 has against her solicitor may be considered in another venue if he seeks his costs for acting on her behalf. The actions of D1 and her solicitor unnecessarily caused the plaintiff to incur costs which did not need to be incurred and which now have to be paid by the estate. This was contrary to D1’'s duties as executrix to collect and preserve the Deceased’'s estate

[17] Therefore, the final order as far as costs are concerned is:

(i) The plaintiff is to have his costs from the estate.

(ii) D1 is not entitled to any costs.

(iii) In respect of D3 and D4, who are both legally aided, I make no order save that as they are legally assisted their costs should be taxed in accordance with the Second Schedule. They may be liable to a charge in respect of the legal aid fund in respect of their legacies and/or devises under this Will but that is a matter for the legal aid fund.

(iv) Given the role adopted by D5 I make no order for costs for or against D5.