Contentious Probate

Question 1

1.CPR57
2.CPR57.11
3.CPR 44.2(2)(a)
4.CPR 442(2)(b)
5. CPR 44.2(3)(b):
6. CPR 44.2(4):
7. CPR 44.2(5)(a):

Answer 1

1. Procedure on contentious probate
2. Normal rules on discontinuance don’t apply (CPR 38) therefore just because a claim is discontinued doesn’t mean the costs will be paid by that party
3. General Rules – loser pays
4. Court can make different order (CPR 44.1 – Court has Discretion)
5. General rule not apply in Court of Appeal
6. Factors court will consider when making an order. Court will have regard to all the circs.
7. Conduct includes the extent to which they followed PAP - Pre Action Protocol (includes Association of Contentious Trust and Probate Specialists “ACTAPS code”)

Question 2

Mitchell v Gard (1863):

Answer 2

Degree of Blame

Question 3

9. CPR 57.7(5): Exception 1

10.Wharton v Bancroft (2012):

Answer 3

9. Exception 1 to general rule/ App for proving Will on solemn form without advancing positive case. No order for costs against defendant unless no reasonable grounds for seeking enquiry.
10. Costs protection under CPR 57.7(5) may be lost where parties put forward a positive case and discontinue or lose. Degree of blame will be looked at.

Question 4

11.Spiers v English (1907):

Answer 4

11. Further two exceptions

Question 5

12.2nd Exception:

13.Wharton v Bancroft (2012): Obiter -

14.Re Cutliffe’s estate (1959):

Answer 5

12.Testator cause of litigation – costs should come out of estate

13. unfortunate in these cases where there is no residue left in the estate
14. testator gave false impressions of what would be in will

Question 6

15.3rd Exception:

16.Parties bear own costs

17.Davies v Gregory -

18. Re Vrint Vrint v Swain (1940) (COA) -

Answer 6

15.3rd Exception: Reasonable to investigate because of circumstances – costs should be bourne by both sides

16.Parties bear own costs

17.Davies v Gregory - must be bona fide belief

18. Re Vrint Vrint v Swain (1940) (COA) - Litigation in Small Estate Cases – such cases should be compromised not litigated. Courts keen to discourage and penalise, via costs, those who litigate on small estates

Question 7

K

Answer 7

Exceptions in Spiers and English not a straightjacket