1. This article is concerned with what might be described as the ‘passive probate defence’ contained in CPR 57.7(5), and more particularly the incidence of costs flowing from it. There was relatively little case law on its application until recently, when the rule was considered in Simmons v Elliott [2016] WTLR 1375 and the unreported decision late last year of HHJ Gerald in Amstel v Fraser. This article seeks to summarise the present position.
  2. Our procedural system is and remains an adversarial one, and in civil litigation the requirement is for the parties, by properly and fully pleaded statements of case, to define the issues on which the court is invited to adjudicate, and establish their case. The general rule (and starting point, subject to the Court’s discretion) is that the parties’ costs will follow that event (CPR 44.2(2)).
  3. Generally, probate proceedings are no different. CPR rr57.7(3)&(4) provide that a party must give full particulars of the facts and matters relied upon if it is contended that at a time a will was executed the testator did not know and approve its contents, lacked testamentary capacity or it was obtained by undue influence. It is also now well established that, following fully contested probate proceeds, the general rule under CPR 44.2(2) applies, although in determining whether in its discretion the Court should make a different order, the two probate exceptions to costs as enshrined in Spires v English may be relevant (Kostic v Chaplin [2008] 2 Costs LR 271).
  4. Nevertheless, probate proceedings also occupy an anomalous position, in that the probate court retains an inquisitorial jurisdiction to seek the truth as to what was the testator’s true last testament (see Killick v Pountney [2000] WTLR 41, as more recently applied in Barrett v Bem [2012] Ch 574).
  5. In broad terms, this inquisitorial jurisdiction underlies the longstanding rule now enshrined in CPR 57.7(5), namely that in the face of a claim to propound a will in solemn form of law:

    “(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross- examine the witnesses who attested the will.(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.”

  6. There are two important elements to this rule, First, it is said that the rule, and the scope of the defendant’s cross examination, is not limited to questions as to due execution, but instead that a notice to cross-examination allows a defendant to question the attesting witness more generally on issues relating to capacity and want of knowledge and approval (but not undue influence): see Tristram & Cootes, para 34.06 and Cleare v Cleare (1869) LR 655. It thus allows an inquiry at trial into question of the substantial validity even in the absence of a positive challenge having been made. However, it is likely to be limited (see below).
  7. Further, the costs position in CPR 57.7(5)(b) is important, because it reverses the general rule under CPR 44.2(2), making the starting point (assuming the will is proved) no order as to costs, with the court only making an adverse costs order against the defendant where it is satisfied that there were no reasonable grounds for opposing the will.
  8. So, how have the Courts approached the rule to date?
  9. The starting point is by reference to two rather ancient authorities dealing with the predecessor to CPR 57.7; one where the costs rule was applied and one where it was not. Although the reports are (as was customary at the time) particular short, they do suggest that reliance on a passive defence will not, by itself, remove a risk as to costs, but will depend on whether the circumstances raise a doubt/suspicion as to validity and, ultimately, on what, if anything, comes out of the cross examination:

    (1) In Spicer v Spicer [1899] P 38, the Court considered the origin of this exception. In referring to the old rule, the Court stated: “I never was able to understand why defendants in probate suits should not be called upon to make up their minds either to admit or dispute the will, without being allowed a skirmish at no risk of paying costs and at expense to the estate. Henceforth, under the new rule, the question will be whether the defendants have reasonable grounds for opposing the will; and if they have not, they will be liable to be condemned in costs.” In ordering the defendant to pay costs in that case, it was found that their counsel’s cross examination of the attesting witnesses “amounted to nothing, and it did not suggest either defective execution, testamentary incapacity, or undue influence. The case was an example of the precise abuse which the new rule was intended to prevent.

    (2) In Davies v Jones [1899] P 161, it was held that this is a complete rule of practice, and that, although it does not follow that, because a defendant fails, there was no reasonable ground, the Court would look into the circumstances. In that case reasonable grounds were found where the solicitor and an attesting witnesses had died, and the recollection of the other witness was vague. Under these circumstances, it was held, “it is not unreasonable that she should be put into the witness box, to state upon oath what took place and to be cross-examined as to her recollection of the matter.

  10. More recently, the courts had given some obita remarks that the costs rule in CPR 57.7(5)(b) is an expression of, and is thus analogous to, the second probate exception in Spires v English, namely that there will be no order as to costs where it is genuinely believed that there are fair circumstances of doubt or suspicion regarding, and thus reasonable grounds to question, the validity of the will, and thus lead to an investigation of the matter: see Wharton v Bancroft [2012] EWHC 91 and Wylde v Culver [2006] EWHC 923. In Wylde, it was held (consistently with Davies v Jones above) that “a reasonable but nevertheless ultimately mistaken belief in a state of affairs which if not mistaken would lead to a will being pronounced against does amount to a reasonable ground for opposing a will.
  11. These cases were considered in detail in Elliott v Simmonds (a case in which the author acted for the successful claimant). In Elliott, the testator, having split from his wife, executed a handwritten will in 2010 leaving a pecuniary legacy of £100k to the defendant, his daughter from a previous relationship, and his residue of his £1m+ estate to the claimant, with whom he had formed a relationship. However, after being diagnosed with a brain tumour in 2011 and falling out with his family in 2012, he instructed his trusted, long standing solicitor and friend to draw up a new will leaving his estate entirely to the claimant, which he executed before the solicitor. The solicitor made detailed attendance notes of his conversations with the testator, and, following the testator’s death later in 2012, provided a witness statement, each to the effect that the testator knew and understood his new will and, in the solicitor’s own assessment, was capable of making it. These, together with the testator’s medical reports, were provided by the claimant to the defendant in 2013 after she intimated a challenge shortly after the testator’s death to the 2012 will. Although the defendant had indicated a positive challenge on the grounds of incapacity based on some vague references to confusion associated with his tumour in the medical notes, when a claim was issued to propound the 2012 will she simply gave notice under CPR 57.7(5)(a) to cross-examine the claimant’s witnesses. This lead to a trial before a Deputy High Court Judge.
  12. There are two important aspects to the case as regards the rule in CPR 57.7(5). First, at trial an issue arose as to the scope of the defendant’s cross-examination of the solicitor called to prove the will, and whether it could extend beyond matters of due execution. The issue was that, as a result of the passive defence only having been pleaded, the precise case on capacity had not been aired in the pleadings, disclosure and witness statement evidence had not concerned issues of capacity, the claimant had not been given permission to obtain expert medical evidence and limited costs budgets had been approved on that basis also. After argument, in accordance with the principles above the Deputy Judge allowed questions to be asked regarding capacity on the basis of medical reports the defendant had sought to include in the trial bundle. However, in order to achieve an element of fairness, the Deputy Judge severely limited and, in effect, handicapped, the defendant in the time allowed and the questions that could be put in cross-examination. The result was that the defendant’s counsel’s cross-examination (in the Deputy Judge’s words) “came to nothing”, and 2012 will was admitted.
  13. Second, as to costs the defendant sought to rely on CPR 57.7(5)(b). She failed in substance. It was held that, the starting point being no order as to costs, the burden was on the claimant to satisfy the Court that there were no reasonable grounds for opposing the will and there should be a different order. The Court considered Spicer and Davies, and the distinction illustrated by those cases, as remaining good law, and accepted that an ultimately mistaken belief in the opposition to a will (i.e. the defendant had lost) would not, of itself, mean that there were no reasonable grounds for the same. Nevertheless, it recognised that the each case turns on its own facts, the question in any given case being whether, on the plain language of the rule, the opposition was a reasonable one, but “bearing in mind the principles of policy and fairness underlying the costs regime and in light of the court’s discretion as to costs set out in CPR 44.2.”
  14. On that basis, it was held that there were no reasonable grounds for opposition. The solicitor’s evidence held up in the face of (limited) cross-examination, and ultimately the inquiry was speculative and there was nothing to be gained from forcing an expensive, High Court trial and summoning the solicitor to give evidence in relation to questions of capacity. The defendant would be condemned as to the costs associated with that. However, although the Court did not ultimately make final decision as to whether, as indicated above, CPR 57.7(5)(b) was the mirror of the second probate exception in Spires v English, it did in effect apply an important element of that principle by analogy, namely that the benefit of the rule would only apply up to the point where the defendant had sufficient material (viz all of the available medical records) on which to form a view about whether there was any reasonable ground to oppose the will. In other words, it was held that the rule (i.e. no order as to costs) did apply for a period after the defendant first intimated her challenge, and only ceased to apply (i.e. there were no reasonable grounds) some time later from 2013 when she had sufficient evidence on which to form a properly assessed view about whether there were any reasonable grounds to oppose the will, such that she would be at risk as to costs thereafter.
  15. Bearing in mind this approach, it therefore came as somewhat of a surprise that HHJ Gerald declined to apply the costs rule in CPR 57.7(5)(b) on the facts of Amstel v Fraser (in which the author acted for Mr Fraser)
  16. The facts of Amstel were highly unusual:

    (1)  The deceased had died aged 98 in 2011 without any close blood relatives. Her house had been left empty for many years both before (when she resided in a care home) and after her death, and there had been no grant of probate. The local authority asked the genealogy firm Fraser & Fraser to locate those interested. They located a number of individuals entitled on an intestacy. They also located the deceased’s former husband’s niece, Marion Finn, who indicated that a will might be in existence, but it was lost. She was given time to produce it. After 6 months no will or evidence as to the existence of the will was forthcoming, and so a grant of letters of administration was obtained by Andrew Fraser for the benefit of the intestacy beneficiaries. It was only after this event that Marion’s brother, Martin Amstel, instructed solicitors and, having conducted a search of Marion’s house (Marion was a hoarder, whose affairs were in a state of disarray) located a copy of a will of the deceased, by which the deceased’s house was left to Martin (with the residue left to charities). The original was never found. After Mr Fraser instructed solicitors and acceded to Martin’s application for an injunction to prevent a sale of the deceased’s house, Martin was asked to produce evidence as to the circumstances of the will as would be required to prove a copy will and overcome any presumption (if it arose) that it was revoked in the deceased’s lifetime. After some delay, he did so in the form of a number of detailed witness statements. It was considered sufficient for those purposes.
    (2)  In that time, however, it had come to Mr Fraser’s attention that the deceased had a history of mental illness (memory loss, depression and anxiety), had made the will in a short window between discharge and readmission to hospital, and of the very limited medical records he had then been able to obtain, it appeared that, when she was re-admitted only 8 days following the making of the Will, she was “very confused and delirious” and had been recorded as having been “shouting, scratching and … irritable.” This had not been mentioned in the evidence put forward by Martin, and was arguably inconsistent with a part of it. Martin was told that, while his evidence was considered sufficient to prove a copy will, there was an issue of capacity which was reasonable for Mr Fraser to investigate and that he would seek to locate the deceased’s medical records.

    (3)  Unfortunately, Martin was not prepared to give Mr Fraser time, and had already issued and then served proceedings to propound the copy will. Because Mr Fraser was not in a position to make a positive case in capacity, he gave a CPR 57.7(5)(a) notice in his Defence, noting in particular the indications from the limited medical reports then received and that the position was reserved until the full medical reports were obtained and considered.

    (4)  Once those reports were eventually obtained several months later, the picture as regards capacity was a mixed one. Moreover, the relevant care home notes for the short period when the will was executed were missing. Mr Fraser thus took the decision not to further oppose the will, and retracted his notice. The matter thus proceeded to trial on the basis that Mr Fraser would take no active part in the proof of the will.

  17. The Court propounded the deceased’s will as contained in a copy. The question then turned to costs. Mr Fraser’s position was that, save in so far as his costs were not borne by the estate and/or Mr Martin, there was to be no order as to costs pursuant to CPR 57.7(5)(b). This was rejected by the Judge on the basis, inter alia, that there were no reasonable grounds for opposing the will, and he condemned Mr Fraser as to Martin’s costs.
  18. The Judge in particular considered that the mere reference to a decline in the deceased’s mental state and reliance on her advanced age were not sufficient, and given that there was or might have been available other evidence pointing towards capacity (notably those who witnessed the deceased at the time), and Mr Fraser had not called the witnesses for cross-examination in the end, found that there was no basis for his investigation and opposition.
  19. This was, with respect to the honourable Judge, a surprising decision given the propositions of law above, and in particular that there certainly appeared to be a question as to delirium (which the Judge skirted over) and thus capacity that Mr Fraser needed (on behalf of the intestate beneficiaries) to further investigate, and that he did not, once he had all of sufficient evidence on which to form a properly assessed view about whether there were any reasonable grounds to oppose the will, force a cross-examination of the witnesses. Instead, it was argued, the trial had been needlessly brought about by Martin’s precipitous commencement of proceedings.
  20. Further, the decision needs to be seen in some context, and why it might be considered outside of the norm or otherwise of little authoritative weight:

    (1) First, the Judge was not persuaded by the argument that Mr Fraser’s actions in obtained his grant of letters of administration without notice and without telling the probate registry about the Marion’s contention that there was a (then lost) will, and then proceeding without delay to sell the house, were both proper in the circumstances and in any case would have made no difference to the analysis (because there would still have been an application to prove the copy will). The Judge considered that costs follow those events;

    (2) Second, the Judge took the view that Mr Fraser, having the benefit of a contingency type arrangement with the intestacy beneficiaries, embarked on his opposition to the copy will as a commercial venture. The Judge took the view that Mr Fraser took the risk of and should bear the costs of that failed venture (notwithstanding the substance of the decision in the authority relied upon for these purposes had been found to have been wrongly decided); and

    (3) Third, it was evident that the Judge was not himself aware of the rule in CPR 57.7(5) and considered, contrary to the cases above, that its scope did not extend to matters of capacity.

  21. Nevertheless, there must be some recognition that the civil Judges, naturally versed in the modern approach to costs under CPR 44.2, may well be more inclined instinctively to approach CPR 57.7(5)(b) with caution. Arguably the cases set out above taken together with Amstel might now tend towards the view that the rule does not provide quite the costs protection as might otherwise appear, and unless there is otherwise a dearth of other sufficient evidence to make a decision whether to oppose and/or there are doubts as to validity which are particularly pronounced and, in the event, do amount to something upon investigation, there remains a risk as to costs if notice under the rule is given.
  22. It was genuinely considered that there was a particularly pronounced doubt as to capacity in Amstel, and Mr Fraser pulled out of the fight as soon as he was able to make a fully informed decision in the interests of the intestacy beneficiaries. In the end, the Judge regrettably saw it differently.


Oliver Hilton

Radcliffe Chambers

Lincoln’s Inn

11 January 2019.