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

The question I must ask myself is whether the circumstances, including the knowledge and means of knowledge of the first defendant, led reasonably to an investigation of the matter. If so, then I may decide not to order the first defendant, as the unsuccessful party, to pay the claimant’s costs of the claim. In doing so, I will take into account the reasonableness of the conduct of the unsuccessful first defendant. Were reasonable suspicions raised about the validity of the will? If so, when, and for how long? I will also bear in mind that an investigation may be justified at the beginning, and yet, as the case progresses, and matters become clearer, the need for an investigation evaporates, and the normal rule that costs follow the event is appropriate.

In the present case, the first defendant was cut out of the deceased’s original 1984 will after an estrangement between them in 2009. This is not a ground for suspicion of a lack of testamentary capacity, nor of want of knowledge and approval, nor of undue influence. People fall out. Testators are entitled to change their minds. As Cresswell J said in Sefton v Hopwood (1857) 1 F & F 578, 580, capacity to make a will

“does not mean that [the testator] should make what other people may think a sensible will. or a reasonable will, or a kind will … ”

And here there was an estrangement, a reason for the change. Moreover, the deceased gave the share of the estate which under the former will would have gone to the first defendant to the first defendant’s own two sons. So it was not given out of the family. The will was made professionally, and independently, albeit by a will-writing firm about which the deceased’s children originally had their concerns. But these concerns were overcome. In my judgment, there was simply no basis at this stage for any suspicion that the will was not valid.

Even if there had been such a basis, the first defendant took no steps for several years to investigate the position. In September 2022, the will-writers confirmed to her that they had seen the original will after the deceased’s death. So there was no basis for suspecting that the deceased had destroyed it. In February 2023, the claimant sent the first defendant at her request copies of both the will file and the medical records that the claimant had so far been able to obtain. Neither gave any grounds for suspicion. Although she could easily have done so, the first defendant did not herself seek the deceased’s medical records or her social care records until she made an application in the claim for third-party disclosure in October 2024. When the records were produced, they showed no grounds for suspicion.

The claimant finally issued her claim in September 2023, more than six years after the death. The first defendant had not investigated anything in the meantime. At the first CCMC, in August 2024, the first defendant expressly confirmed to the judge, at her request, that she was not seeking permission for expert evidence of testamentary capacity to be adduced at the trial. It was only at a subsequent hearing, in November 2024, that she belatedly asked for permission for a single joint expert to give a report. Permission was given. When the report was produced, it confirmed that the deceased did have capacity at the time of making the will.

Overall, on these facts, and in my judgment, there is simply no room for the application of the second exception in Spiers v English to operate. The first defendant had no reasonable basis to suspect that the 2014 will was invalid, and therefore no reason to investigate. In relation to undue influence, the first defendant refers to Re Gilhooly [2020] NI Ch 21, [8], but I cannot see that this assists her. In these circumstances, I can see no reason why the normal costs rule should not apply, and the unsuccessful party, namely, the first defendant, should not be ordered to pay the costs of the successful party, that is, the claimant. I will therefore make such an order, with costs to be subject to detailed assessment if not agreed.