PT-2022-BRS-000087 - [2025] EWHC 2609 (Ch)

The executors are the executors of a valid will who remained as neutral as they could whilst being forced to engage to some extent with the proceedings.

Mr McKean was unable to cite any authority for his submission that there was no principled basis upon which to order that Vivian pay the executors’ costs. CPR Part 44.2(1) clearly incapsulates the executors as parties.

The most glaring reason for refusing to award the executors’ litigation costs (as opposed to their usual indemnity) from the estate is that if I did so Luke would be paying them despite being the successful party, which would be wholly unjust. Another important reason is that one only has to step back and ask oneself why the executors’ litigation costs were incurred. The obvious and straightforward answer is because Vivian challenged the validity of the Will on almost every conceivable ground. I might add in passing that this costs judgment is so long because Vivian has taken almost every point imaginable in relation to costs, even when some of them were unmeritorious.

Mr Knight was also correct to point out that the executors happen to be Defendants along with Vivian when, had Vivian taken his intended path of making a claim himself, they would have been successful Defendants along with Luke. He was also correct to refer to the fact that all parties recognised that there would be litigation costs as a result of Vivian’s stance by virtue of the executors’ agreed costs budget.

Finally, Ms John referred me to Kostic at [43] by which the costs of the administration pending suit were paid by the losing party. By analogy, she submitted, Vivian should do the same. I agree that that is a reasonable analogy.

I will therefore order that Vivian will pay the executors’ litigation costs on the standard basis if not agreed subject to the ‘no order as to costs’ periods referred to above.