PT-2023-BRS-000112 - [2025] EWHC 2829 (Ch)

In successfully propounding the 2014 will, the claimant was not acting as the personal representative of the deceased. She is therefore not within the provisions of CPR rule 46.3, and thereby entitled to an indemnity from the estate. But, in Sutton v Drax (1815) 2 Ph 323, Sir John Nicholl, sitting in the Prerogative Court of Canterbury, held that:

“Where a legatee propounds a paper and establishes it, thereby fulfilling the duty of the executor, the legatee is entitled to have his expences paid out of the estate of the deceased. This is the rule of the court.”

This rule was followed in Williams v Goude (1828) 1 Hagg Ecc 577, 611 (Sir John Nicholl), and Thorne v Rooke (1841) 2 Curt 799, 831 (Sir Herbert Jenner).

When the Court of Probate was created, under the Probate Act 1857, the rules of practice and procedure from the Prerogative Court of Canterbury were carried over to the Court of Probate: see section 29. Then, when the Court of Probate was itself replaced by the High Court, under the Supreme Court of Judicature Act 1873, section 23 provided that the High Court was, subject to any rules and orders of court, to exercise its jurisdiction in as nearly the same manner as the courts which it replaced.

Thus, in Wilkinson v Corfield (1881) 6 PD 27, a case in the new High Court, Sir James Hannen P said (at 28):

“In this case a legatee having propounded a codicil made in her favour and succeeded, an application was made to me for her costs upon the ground that in propounding the codicil she ought to be allowed those costs, which, if the executor had done his duty, he would have been able to take for himself out of the estate, and I am of opinion that that is a reasonable application.”

The judge went on to refer, for authority, to Sutton v Drax. (More recently, see also Worby v Rosser [2000] PNLR 140, 143D.)

In my judgment the claimant, having successfully propounded the 2014 will, is entitled to be put in the same position as the executor would have been in. Just as the executor would have been entitled to costs on the indemnity basis out of the estate, if not recovered elsewhere, so too is the claimant. I note that paragraph 5.4 of CPR PD 3E provides that:

“Any party to such proceedings who intends to apply for an order for the payment of costs out of the trust fund must file and serve on all other parties written notice of that intention together with a budget of the costs likely to be incurred by that party.”

The expression “trust fund” is defined by paragraph 5.1 to include “the estate of a deceased person”. However, the claimant filed such a notice on the issue of the claim, stating her intention to recover costs from the estate.