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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Tucker v Felton-Page & Ors [2025] EWHC 530 (Ch) (12 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/530.html Cite as: [2025] EWHC 530 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)

		Bristol Civil Justice Centre 2 Redcliff Street, Bristol, BS1 6GR
		12 March 2025

HHJ Michael Berkley:

1. This is my judgment following a trial held, at the behest of and/or with the consent of the parties, on the papers over 1 day instead of the 9 days over which it was originally listed. The reasons will become apparent.
2. Following the circulation of the substantive judgment, a costs hearing was necessary followed by a supplemental hearing on two incidental matters. The delay in hearing the final applications was due to a difficulty in listing largely because of the unavailability of Counsel. The written judgment on the issue of costs follows directly on from this substantive judgment.
3. Miss Pamela Moore of Meadow Bank Farm, Hamnish, Leominster, Herefordshire HR6 OQN, and latterly of Lynhales Nursing Home, Lyonshall, Herefordshire HR5 3LN, was born on 17 July 1919 and died on 25 October 2014 (the "Deceased").
4. The Claimant, Second Defendant, and partners at the date of death of the Deceased in the Third Defendant firm were appointed as executors under the will of the Deceased bearing the date 11 January 2013 (the "2013 Will").
5. The First Defendant is the niece of the Deceased. She has an interest under a number of prior wills including a will of the Deceased dated 4 May 2006 (subject to relevant letters of wishes and any later amendments), alternatively under a will of the Deceased dated 11 November 1997, (the "2006 Will" and the "1997 Will" respectively).

The Dispute

6. The Claimant sought, inter alia, an order propounding the 2013 Will as the last will and testament of the Deceased in solemn form of law.
7. The First Defendant defends the claim on the basis that the 2013 Will was invalid due to, inter alia:
8. 1 A lack of testamentary capacity of the Deceased;

8.2 A lack of knowledge and understanding of the Deceased;

8.3 Undue influence of the Claimant; and/or

8.4 Fraudulent calumny practiced by the Claimant.

9. The First Defendant therefore counterclaims seeking: (i) a declaration pronouncing against the force and validity of the 2013 Will; and (ii) an order propounding the 2006 Will as the last will and testament in solemn form of law.
10. The Second and Third Defendants have both adopted a neutral stance and are content to be bound by the outcome.

Expert Evidence

11. Dr Hagger (the Claimant's expert Consultant Psychiatrist) initially opined, in his report dated February 2023, that the Deceased had capacity to make the 2013 Will. However, he was subsequently supplied with additional material which had been omitted from his original instructions and, following further discussions with Dr Barker, on 26 April 2023 he provided an updated report which opined that the Deceased lacked such capacity.
12. On 28 April 2023, the First Defendant received an expert report dated 28 April 2023 from her instructed expert Dr Barker.
13. On 6 March 2023, Dr Hagger and Dr Barker had attended a joint meeting and on 7 March 2023 produced a joint expert statement which stated that it had become clear that the experts had not been provided the same bundle of documents. On 13 April 2023, the experts produced an updated second joint expert statement.
14. The final position is that Dr Hagger and Dr Barker both state in their separate reports to the Court and in their joint statement that the Deceased did not have capacity to give instructions concerning her testamentary wishes to the Third Defendant when she did so in January 2013 and consequently did not have capacity to make a valid will in January 2013.

The Current Position

15. The trial was listed for 9 days commencing on 4 March 2024.
16. At the PTR, an application was made by the Claimant to ask questions of the First Defendant's expert seeking their opinion on the hypothesis of a long-dis-instructed expert that the Claimant may have been enjoying "islands of lucidity" when she made the 2013 Will. This was opposed by the First Defendant on the basis that it was trying to reintroduce that expert's evidence to counter the Claimant's own expert's evidence which had transpired to be unhelpful to the Claimant (as referred to above). I refused that application, largely for those reasons. Thus, the Claimant was left with her expert's report and the joint statement from both experts.
17. On 1 February 2024, the Claimant purported to serve a Notice of Discontinuance under CPR Part 38, which the First Defendant purported to accept. On 5 March the Claimant's solicitors wrote to the Court pointing out that CPR 57.11(1) disapplied CPR Part 38 and enclosed an application under CPR 57.11(2) for permission to discontinue supported by a witness statement explaining, in summary, that the Claimant had reluctantly concluded that she had insufficient prospects of success at trial to continue with the Claim and set out the reasons why. She maintained (and maintains), however, that she had been reasonable in bringing the claim.
18. I granted that application on paper for reasons alluded to in the recitals to my order. I also gave permission for the First Defendant to serve and rely on written evidence of one of the attesting witnesses to the 2006 Will, which has now been done. However, the Counterclaim and the Claimant's Defence to Counterclaim remained, the final paragraph of the latter of which reads:

11. If, which is denied, the 2013 Will is invalid for any reason, the Claimant does not require the 2006 Will to be proven and does not oppose a decree pronouncing for its force and validity.

19. Accordingly, the Claimant is no longer seeking to promote and propound the 2013 Will, the last will in time, but the court must address the validity of the 2013 Will (it is otherwise on its face compliant with the Wills Act 1837) and, by her Counterclaim the First Defendant is still seeking an order of the court propounding against that will, the last will in time. For that reason, the court is required to carry out a judicial determination of the issue and, if appropriate, pronounce for the 2006 Will in solemn form (see the White Book, 2024 Ed., ¶57.11.1). A grant in solemn form will bind all parties whose interests need to be bound and who are not parties, but on whom notices were served under CPR 19.13. It will, of course bind the interest of the Claimant as a party.
20. Mr Sahonte of Counsel has helpfully provided a skeleton argument in support of the First Defendant's case. Because the applicable law is not in dispute, I gratefully draw on that skeleton argument to set out the law.

The Law

Capacity

21. Questions of capacity are always issue-specific: here, to the making of a will.
22. The relevant test as stated in Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 is:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."


23. That passage was analysed by Lewison LJ, in Simon v Byford [2014] EWCA Civ 280 in which he said as follows:

"34.  The judge set out a passage from the decision of this court in Sharp v Adam [2006] EWCA Civ 449 (itself quoting from the classic judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549) to the effect that it is essential to the exercise of a power of disposition by will that a testator:

"[a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties…"

24. Earlier in his judgment, Lewison LJ had explained about the application of the four-fold test, when he held:

"17. In my judgment that was the right approach. As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197:

"The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation."

25. Lewison LJ went on in Simon v Byford at §40 to also state that:

"40. In other words, capacity depends on the potential to understand. It is not to be equated with a test of memory. The point made by Peter Gibson LJ is not a new one. In Harwood v Baker (1840) 3 Moo PC 282 Erskine J giving the judgment of the Privy Council said:

"… in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property." (Emphasis added)"

26. The test of understanding the competing claims of would-be beneficiaries to which effect should be given is set out in Banks itself. The relevant passage is at pp568-569 where the judgment in Harwood v Baker is cited with approval:

"In a case of Harwood v. Baker , before the Judicial Committee of the Privy Council, in which case a will had been executed by a testator on his deathbed, in favour of a second wife, to the exclusion of the other members of his family, he being in a state of weakened and impaired capacity from disease producing torpor of the brain, and rendering his mind incapable of exertion unless roused, Erskine, J., delivered the judgment of the Court in these terms "Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr. Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light upon the question as to his capacity".

27. This last part of the Banks criteria is a multifactorial question, in that this is an issue as to the condition of the testator at the material times.
28. In the passage preceding the now classic four-fold test, Cockburn CJ in Banks set out what a sound disponing mind is:

In the case of Den v. Vancleve 29 the law was thus stated:

"By the terms 'a sound and disposing mind and memory' it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory."

In the subsequent case of Stevens v. Vancleve it is said:

"The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose.

But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will.

This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?"

29. The medical evidence in any case does not usurp the function of Court and it cannot. Factual context is also important, and this is where the so-called Golden Rule can be of assistance.
30. In Sharp v Adam (supra), where the golden rule had in fact been followed, the Court of Appeal nevertheless upheld the trial judge who found that the testator did not have capacity. May LJ said:

"There is a so called "golden rule" that the making of a will by an old and infirm testator ought to be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings — see In re Simpson (1997) S.J. vol 121 page 224 and Kenward v Adams The Times, 29th November 1975 . Miss Hall not only fully complied with this, but did everything conceivably possible, short of submitting Mr Adam to a wholly impracticable full-scale series of neuro-physiological tests and examinations, to satisfy herself that Mr Adam had testamentary capacity. Mr Cooper, on behalf of the appellants, came quite close to submitting that such meticulous compliance with the golden rule should in principle be determinative. In our view, this would go too far. The opinion of a general practitioner, unimpeachable in itself and supported by that of one or more solicitors, may nevertheless very occasionally be shown by other evidence to be wrong. The golden rule is a rule of solicitors' good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule.


Want of Knowledge & Approval

31. In Gill v Woodall, Lord Neuberger MR said:

"21.  The judge approached the issue of knowledge and approval on a two-stage basis. He first asked whether Dr Gill had established sufficient facts to "excite the suspicion of the court", which really amounts to establishing a prima facie case that Mrs Gill did not in fact know of and approve the contents of the will. Secondly, having held that Dr Gill had excited the suspicion of the court, he then turned to consider whether or not those suspicions were allayed by the RSPCA, who were of course supporting the will. This approach accords with Parke B's analysis in Barry v Butlin 2 Moo PC 480 , quoted by Lindley LJ in Tyrrell v Painton [1894] P 151 , 156–157, referred to above, and it is reflected in the approach in a number of other cases.

22.  Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it  would, at least generally, be better to adopt is that summarised by Sachs J in In re Crerar (unreported) but see (1956) 106 LJ 694 , 695, cited and followed by Latey J in In re Morris, decd [1971] P 62 , 78, namely that the court should

"consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption."

32. The correct test has recently been summarised in Simon v Byford:

"When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made.

Fraudulent Calumny & Undue Influence

33. The law in this area is not controversial, see Re Edwards [2007] EWHC 1119. Lewison J, as he then was said that the following principles are engaged in a plea of undue influence and fraudulent calumny:

"47. There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:

i) in a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii) whether undue influence has procured the execution of a will is therefore a question of fact;

iii) the burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

iv) in this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud.

v) coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense;

vi) the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A "drip drip" approach may be highly effective in sapping the will;

vii) there is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is "fraudulent calumny". The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;

viii) the essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;

ix) the question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent."

The Pleaded Cases

34. The Counterclaim is very detailed and meticulously sets out the challenges to the validity of the will by pleading a set of facts in respect of each head of challenge. Those relating to capacity run to 27 particulars, many of which contain up to 10 sub-particulars. Those that relate to want of knowledge and approval list 15 primary facts in support. Similar numbers of particulars are pleaded in support of fraudulent calumny and undue influence. In the circumstances of this case, it would not be proportionate to list them here.

The Evidence and My Conclusions

Capacity

35. At trial, the Claimant did not advance a positive case in favour of the 2013 Will. She did not seek to challenge the statements of the First Defendant's witnesses filed in support of the Counterclaim. Those witness statements are credible on their face so far as they go (see below) and there is no documentary evidence to which I have been directed which undermines them on the central issues in the case. In particular, the First Defendant and her witnesses make it plain that the Deceased and the First Defendant had a long and loving familial relationship with one another. This casts immediate and serious doubt for one of the principal reasons that the Deceased claimed to have wanted to change her will, being (and I paraphrase) that she did not really know her niece and nephew, and they had not been there for her and did not share any interests with her. In addition, her description of the First Defendant as being "as fast as a barrel load of monkeys" was plainly at odds with the many years of devoted care the First Defendant had afforded to the Deceased, often in circumstances of adversity brought about by the Claimant's hostility to her.
36. Taking the evidence of those witness statements into account, which backs up the pleaded case, it can be said with some certainty that the Deceased was acting in a way at the time of the 2013 Will that would certainly rouse the suspicions of anyone that knew her as to whether she lacked capacity to make a will in the Banks v Goodfellow sense.
37. That being the case, the experts' reports, together with their joint statement, are powerfully persuasive on the issue of capacity.
38. Although hardly necessary, it is worth noting that the "Golden Rule" was not satisfied at least two respects at the time that the 2013 Will was executed:

38.1 There is no contemporary medical certification of the Testatrix's task and time specific capacity to make a will; and

38.2 there was no consideration of the 2006 Will when instructions were taken for the preparation of the last will and no analysis or reflection on the radical departure from the 2006 Will or the reasons for doing so.

39. There is significant medical history available from the records in respect of the period prior to the making of the 2013 Will which itself casts doubt on the Deceased's capacity at the time.
40. The only medical evidence which suggests that the Deceased had capacity is that of Dr Myhill, a private GP who specialises as a naturopath (having de-registered with the GMC in 2020). Dr Myhill was instructed by the Claimant's solicitors in June 2013. She carried out a 20-minute in-person assessment using a "Mini-Mental State Examination" and other cognitive tests and she concluded that the Deceased had capacity (though acknowledging the Deceased's score put her at "borderline cognitive dysfunction". Her investigation and methodology were criticised by Dr Barker in his report and implicitly so in Dr Hagger's report. It had also attracted criticism from Professor Thompson. It is not clear why Dr Myhill was chosen, and not the Deceased's GP, or one of her many treating medics or social workers who were known and available. She did not comply with the procedure advised in a BMJ article to which she refers in her report (and refers wrongly as BMA guidance), e.g. she failed to consider the earlier wills. In addition, her letter of instruction was redacted. I am satisfied that Dr Myhill's assessment in June 2013 of the Deceased as having capacity when she made the 2013 Will falls very far short of overcoming the significant evidence to the contrary from all the other sources to which I have referred.
41. In all the circumstances, I am satisfied that the Deceased did not have testamentary capacity when she made the 2013 Will and I pronounce against it.

Want of Knowledge and Approval

42. This is not as clear-cut as the lack of capacity. As the authorities show, this is more difficult to establish in respect of a testatrix than a lack of full testamentary capacity. The main questioned factor in this case seems to have been whether the Deceased understood the extent of her estate, although Mr Moore is concerned about whether the Deceased could have known what the contents of the 2013 Will were because of her blindness and dementia. The First Defendant had concerns in respect of the Deceased's knowledge of the contents of the estate and refers to her thinking (wrongly) that she had a property in Hereford, though it is true that the experts do not pick up on this aspect in the same way. On the other hand, it seems that they were not instructed to opine on this issue.
43. On the First Defendant's own evidence, the Deceased appears to have been cognisant of the fact that she was preparing to sign a new will, and that the major asset that she had was the farm itself. However, Mr Moore's evidence is that by the time she came to sign it, she was all but blind, needing a magnifying glass to read and observed that she had even forgotten to take her glasses for the signing.
44. Mr Sahonte summarised the First Defendant's position thus:

27. In this case, the facts are noticeably clear. The Testatrix lacked capacity, and here she also lacked the ability to understand and approve choices that she had already made because she was unable to reason and comprehend those choices.

45. Applying the correct test as set out above, whether the deceased could reason and comprehend the choices already made is not the correct approach. The choices are a given; the important issues are whether the Deceased knew and understood what she had, and what proportions of that she was giving to whom.
46. From the attendance note made by Mr Wilcox-Jones of Dilwyns Solicitors when he attended the Deceased on 9 January 2013 when the will was purportedly executed, it seems to me difficult to conclude that the Deceased did not know that she was making a new will and that she knew the approximate size and nature of her estate. There is, so far as I am aware, no attack on the accuracy of the attendance note as a note of what was said during that visit. The Deceased was aware that the farm had not been valued recently, but put a value on it of between £1-2 million. The site has been valued for the purposes of these proceedings in the sum of £2.38 million. Accordingly, the Deceased's valuation was, in my judgment, for someone aged 93 and not engaged with the rest of the world to any great degree, more than reasonable. It was certainly not ridiculously low or high to suggest that she had no idea of its value or that she was delusional about it. She knew that she had 50 park homes and a "dozen or so tourers", and that she had no car because she had been prevented from driving a few years earlier. There is no reference to a house in Hereford in her discussions with Mr Wilcox-Jones.
47. The choices the Deceased made as to what to do with those assets cannot be relied upon because of her lack of testamentary capacity which I have already found. However, once the bases of those choices are set to one side, it cannot, in my judgment be said that the Deceased had a want of knowledge and approval of the contents of the 2013 Will and the Counterclaim fails on this ground.

Undue Influence and Fraudulent Calumny

48. Mr Sahonte's skeleton argument summarises the First Defendant's position, thus:

29. The starting and possibly the end point for this issue is the medical evidence. Both physicians agree that the Testatrix was vulnerable to influence

30. The Court is invited to look closely at the way that the matters are pleaded in respect of:

30.1 Undue influence para 20;

30.2 Fraudulent Calumny para 21.

31. The Court is invited insofar as it needs to, to draw any supporting and concluding inferences to make out this part of the claim. These, too, are as powerful claims as the capacity and knowledge and want of approval. They play out from the manner in which the Claimant treated the Testatrix over the course of many years, characterised by an asymmetry of power, subtle domination, increasing control over her affairs, managing all of her affairs and in the end, a coerced gift in her favour procured by the domination that she exercised over the Testatrix, which domination the Testatrix was wholly unable to resist given all her other relatives were excluded, a fact most notable when they tried to challenge the Testatrix in the Court of Protection proceedings.

49. The experts' joint statement does conclude that the Deceased was a vulnerable person:

4. We agree that the deceased was vulnerable to influence by another due to her dementia, and her sensory deficits. Depending on the degree to which the Court considered the deceased was subjected to oppressive and manipulating behaviour, it is possible that her will could have been over-ridden.

50. The difficulty in allowing this part of the Counterclaim is illustrated by the words "Depending on the degree" in that joint statement. I have the witness statements filed on behalf of the First Defendant, but I also have the witness statements filed on behalf of the Claimant. The latter deny any undue influence or fraudulent calumny. They are admissible but cannot be used to counter the direct evidence of the First Defendant and her witnesses because the Claimant, following discontinuance, has chosen not to challenge that evidence.
51. The allegations are by their nature serious allegations of fraud. They are positive allegations in the sense that they allege positive acts on the part of the Claimant and others acting on her instructions. The medical evidence provides the Court with a medical route to a finding that the Claimant was guilty of such behaviour, but the evidence in support from the First Claimant and her witnesses is largely circumstantial (for obvious reasons). In those circumstances, the Claimant's and her witnesses' denial of such behaviour is on its face not a challenge to the First Defendant's evidence. It has not been tested in cross-examination to enable the Court to assess whether those serious positive allegations have been made out. On the other hand, I must acknowledge that the illogical and untrue reasons given by the Deceased for wanting to change her will and all but cut out the First Defendant based on her and Mr Moore's behaviour, both past and recent, might well have led the Court to conclude that the Deceased was been influenced, and possibly unduly, by the Claimant and/or that the Claimant had persuaded the Deceased that the First Claimant was a bad person.
52. Taking all these matters into account, I propose to make no finding on these limbs of the Counterclaim. This is solely due to the fact that I have been asked, for good reason, to carry out a trial on the papers. This means that I am not comfortable in making these serious findings against the Claimant when the 2013 Will has been pronounced against for other, less contentious, reasons. I do not expect this course of action to be used as an argument by the Claimant in support of an unfavourable costs order in respect of these two heads of the Counterclaim.
53. The judgment on the issue of costs follows.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - COSTS JUDGMENT

HHJ Berkley:

54. This is a reserved costs judgment following a further hearing following the circulation and finalising (though not handing down) of the substantive judgment. No introduction to the case or the judgment is therefore required.
55. Despite having discontinued her case pursuant to CPR 57.11, the Claimant seeks an Order that she does not pay the First and Second Defendants' costs up until the Court gave permission to discontinue in March 2024, alternatively when she first evinced an intention to discontinue (erroneously under CPR 38) or, in the further alternative, when her medical expert, Dr Haggar, changed his opinion in April 2023 to agree with the First Defendant's expert, Dr Barker, that the Deceased did not have testamentary capacity to validly execute the 2013 Will. Both the First and Second Defendants oppose the application, and the First Defendant seeks costs on an indemnity basis from at least April 2023, but, on the basis of an earlier offer, in respect of the whole proceedings.
56. There is a discrete issue in respect of a hearing in January 2024 resulting in an order made against the Second Defendant arising out of his refusal to cooperate with a valuer who was trying to value the farm, presumably for the purposes of settlement. I shall deal with this separately at the end of the judgment.
57. Following a discontinuance being ordered under CPR 57.11, the CPR at r. 57.11(2)(a) provides that costs may be ordered "on such terms … as [the court] thinks just". However, it is not a discretion at large to be exercised. It is common ground that the starting point is the normal rule that costs follow the event, despite the fact that the automatic application of that rule is not repeated from CPR 38. It is therefore incumbent upon the Claimant to persuade the court to order otherwise based on established exceptions. Those exceptions apply because of the nature of probate proceedings where the role of the court is more inquisitorial than in ordinary proceedings, and the reasonableness of the parties in taking a particular position play a larger part than normal in considering whether the normal costs position can be overridden. A codified example is CPR 57.7(5).
58. There are a number of authorities dealing with the two long-standing common-law exceptions to the general rule. However, Smith J has very recently summarised them, and I can do no better than repeat what she said in Leonard v Leonard [2024] EWHC 979 (Ch). Although she deals with both the first and second exceptions whereas this case is concerned only with the second, the juxtaposition of the two informs the approach to both. Having set out how the normal rule applies as the starting point, Smith J went on:-

12. There is no question that the general rule applies to contentious probate cases and the question is always whether there is sufficient reason for departing from the general rule. However, it is common ground that, in probate cases only, it is also necessary to consider whether the court should be guided in the exercise of its discretion by two long-established common law exceptions which have survived the introduction of the CPR. These exceptions were summarised in Kostic v Chaplin [2007] EWHC 2909 (Ch) and Perrins v Holland [2009] EWHC 2556 (Ch).

13.  The exceptions "allow good cause to be shewn why costs should not follow the event"^[1] and require the court to ask:^[2]

  i)  whether the litigation was caused by the testator or a beneficiary. If so, the court may order the unsuccessful party's costs to be ordered out of the estate;

  ii)  whether the circumstances, including the knowledge and means of knowledge of the opposing party, led reasonably to an investigation of the matter. If so, the court may make no order as to costs.

14.  I shall return to the specific circumstances in which the exceptions apply later in this judgment, but for present purposes I draw the following propositions (which I did not understand to be controversial) from the cases as to the rationale for, and general approach to be taken to, the exceptions:

  i)  the exceptions as formulated were "designed to strike a balance between two principles of high public importance", the first being that "parties should not be tempted into fruitless litigation by the knowledge that their costs will be defrayed by others", and the other being that "doubtful wills should not pass easily into proof by reason of the cost of opposing them" ... Kostic at [10]);

  ii)  since the advent of the CPR , the exercise of the court's discretion is governed by the CPR, but "the considerations of policy and fairness which underlie the two exceptions remain as valid today as they were before the introduction of the CPR " (Kostic at [4]);

  iii)  the exceptions are intended as "guidelines, not straitjackets, and their application will depend on the facts of the particular case" ... Kostic at [6]);

  iv)  a positive case premised on one or both of the exceptions must be made out before the court will depart from the general rule (see Kostic at [6] and Perrins v Holland at [3]). It is necessary to make out a "very strong case on [the] facts" if an unsuccessful litigant is to get his or her costs out of the estate (under the first exception) (see Re Plant Deceased [1926] P 139 per Scrutton LJ at 152; cited in Kostic at [17]);

  v)  in respect of the first exception, "the trend of more recent authorities has been to encourage a careful scrutiny of any case in which the first exception is said to apply, and to narrow rather than extend the circumstances in which it will be held to be engaged" ... Kostic at [21]). This narrowing of the scope of the first exception (reiterated by Henderson LJ in Royal National Institution for Deaf People v Turner [2017] EWCA Civ 385 at [17] ) is a function of the fact that, firstly, nowadays less importance is attached to the independent powers of the court to investigate the circumstances in which a will was executed than was the case in Victorian times; and secondly, the courts are increasingly alert to the dangers of encouraging litigation and discouraging the settlement of doubtful claims at an early stage, if costs are allowed out of the estate to the unsuccessful party ( Kostic at [21]);

  vi)  however, the same narrowing of scope does not apply to the second exception because "there is … still a public interest that where reasonable suspicions are raised about the validity of wills they should be proved in solemn form" (see Perrins v Holland at [17]);

  vii)  even where one or both of the probate exceptions applies, the point may be reached where the litigation becomes ordinary hostile litigation, from which point the normal rule entitling the successful party to an order for costs comes into effect (see Walters v Smee [2008] EWHC 2902 (Ch) per HHJ Purle QC at [8]).

Submissions

59. Mr Evans, Counsel for the Claimant, took me through the relevant authorities as above, but also Wylde v Culver [2006] EWHC 1313 (Ch), ¶¶30; 35-37, which I take into account. In submitting that it had been reasonable to issue proceedings, Mr Evans said that there were three main considerations in the Claimant's favour:

59.1 There was expert evidence, including cotemporaneous evidence, showing that the Deceased had capacity to make the 2013 Will (see Dr Myhill Report and Professor Thompson's Report).

59.2 The initial expert evidence of Dr Hagger supported the view that the Deceased had capacity to make the 2013 Will.

59.3 The deceased was legally represented by the Third Defendant who, despite being a neutral party in these proceedings, actively argued the Deceased had capacity as shown by their witness statement in support of the Claimant.

60. This reasonableness continued at least up until the "further questions application" in January 2024 (see the main judgment) or, if not, the experts' joint statement in April 2023. This was to be contrasted to the position of a losing Claimant who had persevered until the end of a trial, he said.
61. Mr Evans referred to a passage in Kostic in which Henderson J (as he then was) had cited Twist v Tye [1902] P 92 where Sir Gorell Barnes had held that that case was not one in which he could make no order for costs because "the truth of the matter was that the executors had taken a view and acted on it, in circumstances where they stood to benefit if the will was upheld. There was accordingly nothing to warrant a departure from the general rule that costs should follow the event". Mr Evans submitted that the event which marked the Claimant "acting on" her view was when she had received the expert's report. This was supported by ¶14-008 of Theobald on Wills, he submitted. However, the passage he relied upon was merely giving an example of why discontinuance might be sought in a contentious claim after service of the Claim Form, namely that a case has become so weak that it was bound to fail at trial.
62. In the instant circumstances, submitted Mr Evans, it was reasonable for the Claimant to pursue the matter with expert evidence and lay witness support which only changed at the earliest when the witness statements should have been supplied to Dr Haggar, namely on 24 February 2023. It was the witness statements that had caused him to change his mind coupled with the discussions with Dr Barker rather than the withholding of any documents as alleged by the First Defendant. The Claimant had a genuine belief in the Deceased's capacity and it was reasonable to continue the investigations until that belief became unreasonable, he submitted, the earliest point of which was the exchange of witness statements.
63. Mr Evans referred to paragraph 8 of Kostic in which Henderson J referred to Mitchell v Gard (see footnote 2 above) as emphasising the need for enquiry by someone in the Claimant's position in this case. This was similarly emphasised in Leonard v Leonard and Wylde v Culver, he submitted.
64. The case could be divided into three periods, Mr Evans submitted. The first being up to the experts' second joint report; the second being between that report and the notice of discontinuance, and the third being the costs of the First Defendant having to propound the 2006 Will after the main claim had been discontinued.
65. Mr Evans submitted that Part 44 was still applicable, even after the discontinuance and relied upon Leonard v Leonard for that proposition. In terms of conduct, the only criticism that could be raised against the Claimant was that relating to the discontinuance perhaps coming late in the day and in making the application to ask questions of Professor Thompson. The First Defendant purported to make a Part 36 Offer dated 30 May 2022, but Mr Evans submitted that that required both the Claimant and the Second Defendant to accept it before any acceptance became binding, and so the usual Part 36 consequences should not follow, he said. That offer, if accepted and in summary, would have granted the Claimant and the Second Defendant life interests in the land from which their respective businesses operated and the income from those businesses in return for them foregoing their claims in the case.
66. Mr Evans went on to analyse the subsequent offers made by the First Defendant, but in the context of the terms of the 2013 Will and the 2006 Will. He calculated by reference to the valuation of the residuary estate and the number of beneficiaries of the 2006 Will that the First Defendant stands to gain £203,125 from that will. All offers made by the First Defendant after the purported Part 36 Offer put the First Defendant in a much better position than she will now be under the terms of the 2006 Will. For example, the First Defendant agreed to accept £450,000 in return for withdrawing her Defence and Counterclaim and removing the caveat to the 2013 Will. Mr Evans characterised the First Defendant's strategy as holding the Claimant to ransom by virtue of being the only 2006 Will beneficiary to have participated in the proceedings and to thereby profit from that position. Mr Evans also pointed out that the offer made by the Claimant to pay the First Defendant £450,000 would have put the First Defendant in a better position than she is now in had agreement been finalised on that basis.
67. Accordingly, submitted Mr Evans, there has been no unreasonable conduct by the Claimant to justify the court from departing from the usual position of no order for costs whilst reasonable enquiries were being made in respect of the 2013 Will.
68. The right orders for periods Mr Evans identified as set out above were, he said, no order in respect of the first period; no order in respect of the second period or, if not, and the Claimant is to be ordered to pay the First Defendant's costs, then there is nothing to take the matter outside the norm, meaning that such an order should be on the standard rather than indemnity basis. As regards the third period, Mr Evans conceded that the First Defendant should have her costs on the standard basis.
69. Mr Sahonte, Counsel for the First Defendant, started by submitting that Wylde v Culver is not nearly as authoritative as Kostic and Lumb v Lumb [2023] EWHC 2052 (Ch), although he did not develop that submission, and I see no obvious basis for it. Paragraph 18 of Wylde, he submitted, suggests that an incremental analysis is required. In that case there had been some provision for investigation, he said. Mr Sahonte noted that in Kostic the court had drawn the line at the exchange of experts' reports in respect of the second exception.
70. This matter, Mr Sahonte said, was not an ordinary case. There had never been any doubt that the 2006 Will was tainted with any hint of incapacity. It was a will in which the bulk of the estate was left in a fair way to eight nieces and nephews but provided for the Claimant and Second Defendant as discretionary beneficiaries with a letter of wishes in their favour for life interests. That remained the case until 2012 by which time the deceased was in serious mental and physical decline, as Dr Barker had noted from the medical records. The Claimant was living in the same house as the deceased and was her principal carer, Mr Sahonte pointed out. It was the Claimant who took the deceased to the solicitors to execute the 2013 Will; the solicitors never asked for or was shown the 2006 Will, and the 2013 Will cut out all previous beneficiaries. This was a broad sweep of change, Mr Sahonte said. But it didn't stop there: he submitted that the Defence and Counterclaim was extremely detailed in setting out the particulars of why the deceased did not have capacity to make the 2013 Will, and of this material was documentary evidence available to all parties. Between the deceased's death and 2022, there had been extensive disclosure and two unsuccessful mediations Mr Sahonte said. The case should be looked at on the basis that the Claimant had her extensive personal knowledge as well as the documentary evidence and arguments raised in detail by the First Defendant. In addition, in the background there were Court of Protection proceedings which itself suggested that the deceased's mental health was in question; Professor Thompson, the Claimant's first expert, had never examined the deceased and Dr Myer was a discredited source of opinion as to the capacity of the deceased Mr Sahonte submitted, and so the Claimant cannot be heard to say that she was simply relying on these doctors.
71. Mr Sahonte submitted that the second exception had been developed for the sort of case in which an independent firm of solicitors had to investigate the last instrument to have been produced by a deceased, and some investigation was needed to resolve a dispute between warring beneficiaries. But that was not this case, he said. The Claimant was a self-interested beneficiary instrumental in the execution of the now discredited will who also had a fundamental knowledge of the deceased's mental and physical state who, after eight years of consideration and detailed argument, decided to issue proceedings when she did not have to. If there was any scope for an investigation, it must have ended with the second mediation attempt in November 2021. This was hostile litigation from the outset, Mr Sahonte said.
72. As regards Dr Hagger's change of mind, that was solely down to the Claimant's advisors failing to provide him with all relevant material, Mr Sahonte submitted: this is clear from his addendum report. The witness statements which were missing put the diagnosis of dementia into the real world demonstrating how it was affecting the deceased. As soon as he had those documents, he completely agreed with Dr Barker and went further, describing the deceased as "vulnerable". This was all from the documents, Mr Sahonte said, and had the matter been heard at trial, it would have been even clearer that the deceased lacked capacity to execute the 2013 Will.
73. Turning to Mr Evans' second period, Mr Sahonte was critical of the delay between the exchange of experts' reports and the date of discontinuance. I should note here that the application to ask questions of the experts about Professor Thompson's theories of 'islands of memory' or lucidity was not made until 17 November 2023; it was listed in January 2024. That application was a hopeless one, Mr Sahonte submitted: not a single question was seeking clarification of the experts' reports: it was intended as pure cross-examination on paper, he said, in order to cross-examine back in Professor Thompson's abandoned opinions. The Claimant should have thrown the towel in as soon as the joint experts' report was served.
74. Referring to the offers, Mr Sahonte accepted that the Part 36 Offer did not in fact qualify as such, but the offer made by the Claimant in November 2021 was made after the second mediation from which point, he submitted, the Claimant knew that she would have to issue proceedings to propound the 2013 Will in solemn form if it was to be admitted to probate. Prior to that point, the case had been fertile with opportunities to settle: it was obvious that all that was needed to resolve the issue was for the Claimant to offer a sum of money to the First Defendant. The failure of the Claimant to do so takes the matter out of the norm, Mr Sahonte submitted. The parties came close to settling but the detailed terms of the Tomlin Order became an issue, he said, because the Claimant was asking the First Defendant to assist her in propounding the 2013 Will which she was not prepared to do.
75. Mr Sahonte concluded by submitting that from the date of the second mediation, the First Defendant should have her costs on the indemnity basis, failing which from the date of the experts' joint report.
76. Mr Knight for the Second Defendant adopted Mr Sahonte's submissions on the main issue of costs as well as pointing out that the Claimant had failed to address her deep familiarity with the deceased. He referred me to Kostic at paragraphs 11 and 13; 22 and 24 and drew a distinction between the Conservative Party Association (the unsuccessful propounders of the will in that case) whose three executive committee members had no real knowledge of the deceased (save for one who was his solicitor and who thus owed the deceased a duty of confidentiality and could not share his thoughts on the subject with other members of the committee) on the one hand, and the Claimant on the other with her intimate (as her carer) and detailed knowledge of the deceased on a daily basis. The starting point is very different, he said. This case was on all fours with Twist v Tye as Henderson J had set out in Kostic: the Claimant had taken a view in the hope that she would benefit from it. Mr Knight also emphasised the Claimant's involvement with the promotion of the execution of the 2013 Will.
77. The Claimant's approach should have been very different, Mr Knight suggested: she should have realised that she had a commercial interest in propounding the 2013 Will and been up-front about the difficulties, and thereafter taken a neutral stance, whereas this had been flat out hostile litigation from the start and right up to the last minute.
78. In terms of the Second Defendant's costs, Mr Knight submitted that the Second Defendant was due an indemnity under CPR 46.3 as executor and in any event, he had been neutral throughout and he should receive his costs from the Claimant along with the First Defendant.
79. In reply, Mr Evans submitted that Mr Knight is not an executor of the 2006 Will which will prevail, and therefore is not entitled to an indemnity.
80. Mr Evans referred again to Leonard v Leonard which, he submitted, emphasised the fact-specific nature of each case. In that context, he said that the Claimant's knowledge that the service of the First Defendant's expert evidence was the first time that the Claimant had contradictory medical evidence. Prior to that she had her own expert evidence supporting her case; she knew that solicitors had been involved in making the 2013 Will; she had not been present when the 2013 Will had been executed and the executors supported her at the time. There was no evidence of male fides on the Claimant's part Mr Evans said, and he emphasised that the First Defendant had been trying to profit from her position as a party to the proceedings whereas the Claimant's conduct had been reasonable throughout. The Claimant had agreed in principle to settle and it was her solicitor who had produced the draft settlement agreement and Tomlin Order.

Discussion and Conclusion: Main Costs Decision

81. The starting point is the general rule that costs follow the event. Should the court in this case depart from the general rule by way of the second common law exception, namely whether the circumstances, including the knowledge and means of knowledge of the opposing party, led reasonably to an investigation of the matter? If so, the court may make no order as to costs for a defined period or in general.
82. The application of both exceptions is very fact-specific, and first instance decisions are usually merely the application of those principles which are not, I think, controversial, as Smith J said in Leonard. Both exceptions require a positive case to be made out, although the first exception is likely to be more difficult to achieve for a losing party, and there is likely to be a point, even in second exception cases, that the probate litigation becomes ordinary hostile litigation.
83. After careful consideration of Counsel's submissions, I have concluded that there was a period in which it was reasonable for the Claimant to continue her investigations into whether the deceased had capacity to make the 2013 Will. I do so for the following reasons, which I set out in no particular order.
84. It must be borne in mind that capacity is task specific (a principle now enshrined in statute) which is reflected in the authorities which refer to the need to distinguish between eccentric behaviour and a want of capacity. The proximity of the losing party to the deceased later adjudged to have had a lack of capacity is, of course, relevant to the assessment of the losing party's decision to investigate and propound a will, and Kostic is a good example of an arm's length relationship, even though the CPA stood to benefit from propounding the invalid will in that case. However, it is in my judgment, possible to be close to the deceased who is acting questionably in some ways, and yet still genuinely believe that they had capacity to make a will from, e.g. conversations about beneficiaries, those who are not to be beneficiaries; the nature and extent of the estate, and other discrete events in life etc.. If the Claimant was able to continue living with the deceased despite having to provide increasing physical care, as she did, she may have had legitimate reason to believe that the deceased was still mentally capable of giving instructions for a new will.
85. I have not heard the witnesses in this matter. As set out at paragraph 50 of the main judgment, however, I have been supplied with the Claimants' and her witnesses' statements, which were admissible but could not be used to directly counter the evidence of the First Defendant. The Claimant and her witnesses paint a different picture to that of the First Defendant, but they are not providing evidence of the same events or the same moments in time insofar as they concern me in this judgment. Where they do contradict one another, as I have said in the main judgment, I must prefer the evidence of the First Defendant, and I do.
86. In summary, however, the Claimant's evidence is that the deceased was not in as bad a place from a mental health position as the First Defendant describes when she saw her. She (the Claimant) feels that she did what she should as regards the deceased expressing her wish to make a new will and the steps she took to assist with that. A number of photographs are amongst the evidence for the Claimant which are said to show the deceased undertaking "normal" family and friendship situations. These observations on the Claimants' evidence in no way undermines my conclusions in the main judgment, but are relevant when considering the Claimant's reasonableness in bringing and/or maintaining the proceedings.
87. This litigation clearly has an underlying hostility between the Claimant and the First Defendant. Both were close to the deceased and had been so for a very long time. The Second Defendant also had a long association with the deceased. Whilst the removal of the First Defendant as a beneficiary in the 2013 Will did probably call for some explanation or acknowledgement, there was no obvious need for an explanation in relation to the Claimant and the Second Defendant becoming beneficiaries with greater bounty in it. They had been the deceased's almost life-long friends and cohabitees/business associates.
88. The Claimant did have reasonable grounds for believing that the deceased had capacity as at the date of the execution of the 2013 Will. The Claimant's involvement with the arrangements for making the 2013 Will are not, in my judgment, altogether suspicious (although does raise some questions). Whilst she did make contact with the solicitors, they were legitimate solicitors whose adherence to their duties to the deceased the court is entitled to assume were exercised by them. They did not seem to think that the deceased was evincing a lack of capacity, and there is no reason to believe that they would have investigated if they had thought differently, nor that the Claimant sought to persuade them not to investigate. It is true that the Claimant did not seem to have informed them of the deceased's diagnosis of dementia, but dementia can take many forms and has many levels of impact, and it may not have occurred to the Claimant to do so if the deceased was acting "normally" on a day to day basis. It is important that the Claimant was kept out of the room when instructions were being given by the deceased. I do not consider the presence of Mr Winston Phillips to have been significant, and I take into account that he is a professional known to the solicitors. The solicitors' attendance notes, whilst perhaps giving material for cross-examination as to thoroughness, should be taken at face value as representing the beliefs of those solicitors, and do not suggest that the Claimant was attempting to exercise any influence over the deceased on the day.
89. The Claimant's belief as to the deceased's capacity as at January 2013 did get some third-party support. A local GP a few months later, although it seems erroneously, opined that the deceased had capacity as at June 2013. There is no evidence that the Claimant knew that she was an unorthodox GP in that she had de-registered from the GMC in 2020, and she would not have known of the defects in process as pointed out by Dr Barker.
90. The executors of the 2013 Will initially supported the Claimant's position before becoming neutral.
91. Professor Thompson's 2017 Report although not as positive as it might have been, nevertheless supported the Claimant by relying on the "islands of memory" or lucidity theory.
92. Mr Sahonte submits that the failure of the second mediation should, if anything, be the cut-off date for the application of the second exception. It is true that the Claimant can have been in no doubt by that stage that the First Defendant was determined to challenge the 2013 Will on grounds of capacity and other grounds. However, she was the only one of the cut-out nephews and nieces to do so, and that may have given the Claimant some encouragement. Furthermore, the submission that the documentation was so damning of the deceased's capacity to make the 2013 Will does not take into account the fact that Dr Haggar first opined that the deceased did have capacity, and he had all of the documents; what he lacked was the witness statements and Dr Barker's input.
93. In Kostin, Henderson J considered the first exception ended when it had become clear that there was a serious and clearly arguable challenge to the relevant will being propounded for (comparable to the end of the second mediation). That was not sufficient for him, in that case at least, to provide the moment for the termination of the period of the second exception, which he instead measured by an assessment of how long the investigative phase was legitimately continuing. The second mediation was when the Claimant knew that there was a serious and clearly arguable case, but it was not a point at which it could be said that the writing was on the wall for the Claimant's case.
94. The pre-litigation offers that the Claimant made to the First Defendant and which the First Defendant accepted in principle, would necessarily have required the 2013 Will to have been successfully propounded for and admitted to probate in solemn form. Whilst the offer foundered on various objections to the terms of the settlement agreement, including an unwillingness on the First Defendant's part to positively support that step, that was after proceedings had been issued, and it was something that the First Defendant was willing to countenance which in turn may have given some support to the Claimant's view that the 2013 Will needed investigating further. On the other hand, the offers from the Claimant is a sign that she acknowledged that she should be reasonable in the assessment of the merits of propounding the 2013 Will.
95. I bear in mind, too, that the 2013 Will was the last testamentary instrument of the deceased and so prima facie was the operative one. It complied with the Wills Act in terms of its execution. The First Defendant was thus always going to have to apply to the Court to pronounce against the 2013 Will and admit the 2006 Will into probate.
96. In my judgment, for the foregoing reasons, the Claimant had reasonable grounds to investigate the circumstances of the 2013 Will for a period and therefore the second exception to the general rule applies, and there should be no order for costs for that period. I consider that the appropriate end-date for that period is the date of what should have been Dr Haggar's complete report, namely 24 February 2023. That is because, had he been properly instructed, he is likely to have concluded as he did in the second joint statement dated 13 April 2023 and his addendum report dated 26 April 2023.
97. I have taken into account the fact that the Claimant was to benefit from the 2013 Will, but I do not consider that she was as embroiled in the will-making as the losing parties in Twist v Tye were. She had a significant benefit from the 2006 Will (assuming that the executors complied with the deceased's letter of wishes, which is reasonable to assume), so it was not an 'all or nothing' situation for her. However, she was an executor of the 2013 Will, as well as an increased beneficiary, and she had a legitimate interest in propounding it whilst it was reasonable to do so. I do not consider that she had set her mind to propounding it 'come-what-may', as was demonstrated by the substantial offers that she made. The offer made immediately after the second mediation was in the sum of £873,750 (to be divided between the First and Second Defendants), equivalent to 55% of the estate as estimated by her solicitors. Whilst a significant offer, it was not one of someone who has no belief in her position.
98. From the 25 February 2023, the case was one of ordinary hostile litigation. By then the Claimant had taken up her position and was proceeding in the face of her own expert's opinion on capacity, matched by the First Defendant's expert. All other parties were neutral. Whilst expert medical evidence is not conclusive, as I have alluded to in the main judgment, it is always important, and when it is backed by factual and other documentary evidence it becomes even more so. The Claimant was entitled to proceed on that basis, but would have to do so at her own risk, which is what she did. The matter had (or should have) gone past the investigative stage as at 25 February 2023, and thereafter the normal rule will apply.
99. I have considered the arguments in relation to the assessment of costs being on the indemnity basis, but I do not think that any of the matters raised take the matter "out of the norm", the test for making an indemnity costs order. Those aspects that point to such an order are counterbalanced by the Claimant's offers and the fact that, at least on paper, the First Defendant would have been better off concluding the offer she had agreed to accept in principle. Accordingly, subject to the matters below, the Claimant shall pay the costs of the Claim and Counterclaim of the First, Second and Third Defendants from the 24 February 2024 on the standard basis if not agreed.

January 2024 Application

100. This was an application purportedly made by a valuer as an expert in the proceedings to require the Second Defendant to disclose certain documents relating to the caravan park business and to cooperate in the valuer's efforts to value that business as part of his role in valuing the estate as a whole. The hearing had in fact been initiated by a letter from the valuer to the court in September 2023, and a hearing was ordered by DJ Markland in November 2023 which was heard on 16 January 2024 by DJ Brown. The trial was listed over nine days from 3 March 2024.
101. The recitals of DJ Brown's order of 16 January are informative and helpful, but confusing in one respect. From those it is evident that the Claimant and the First and Third Defendants had agreed that the estate should be valued for settlement purposes. The Second Defendant had not been willing to join in the joint instruction. No permission for a Part 35 expert had been given. DJ Markland had not ordered a formal expert valuation because the value of the estate was not an issue in the proceedings. However, she had added a recital to the CCMC order in November 2022 that the court "expects that a Valuation of the Property will be carried out as quickly as reasonably practicable". The expert had written to the court, purportedly under Part 35.14, but recorded by DJ Brown as being pursuant to CPR Part 31.9 and 31.14 (disclosure). DJ Brown accepted that Part 35 did not apply; but also seems to have concluded that Part 31 did not apply, presumably because the valuer had no locus standi to be making applications in these proceedings. However, she granted the disclosure orders pursuant so CPR 3.1(2)(m), the court's general management powers.
102. Mr Sahonte argued that the parties had agreed all along that the valuation was, if not wholly necessary, important in facilitating a settlement. He said that the parties had all, until the Second Defendant's refusal in September 2023, cooperated in securing an expert valuation. The Second Defendant had withdrawn his consent and refused to disclose necessary material from the residential caravan business, information which was peculiarly in his control. Not only did the refusal initiate what should have been an unnecessary application, but the application was resisted requiring the attendance of four lawyers for an hour of court time. The lack of cooperation from the Second Defendant was not only wholly unwarranted, submitted Mr Sahonte, but caused an unnecessary hearing.
103. Mr Knight submitted that the Second Defendant had been neutral throughout and had never in fact spoken up for the 2013 Will, despite benefitting greatly from it. He had carried on the caravan park business which was ultimately for the benefit of the estate. He was 75 years old and in poor health, and had been left without his partner who died in September 2021.
104. Mr Knight emphasised the fact that the valuer was not a court-appointed expert, and the value of the estate was not an issue in the proceedings but was only relevant for settlement. The Second Defendant had never wanted to be involved with the valuation. He said that it was incorrect to say that the Second Defendant had withdrawn his consent: he had been cooperating with the process, providing information and access in early 2023. But in May 2023, the valuer had shown up unannounced and when the Second Defendant had offered his assistance (it appearing that the valuer was not familiar with the peculiarities of a residential caravan park), his assistance was refused "in an ungentlemanly manner". The Second Defendant was in fact scathing of the valuer. Two weeks later, a "Notice of Disclosure" arrived, submitted Mr Evans, which lead ultimately to the hearing on 16 January 2024.
105. Mr Evans' position was that the January 2024 hearing was not an application. It was based on a letter. Furthermore it was a letter from a non-expert and non-party to the proceedings: "a chap just writing to the court", he said. DJ Markland's November 2022 recital was just that: it was not an order of the court. DJ Brown was forced to rely on CPR 3.1(2)(m), he said, because the whole issue had no status in the proceedings. The Second Defendant was not in any breach of a rule or practice direction; no application had been made by any party which the Second Defendant had lost; there was no substantive issue in the case and no report was ever produced by the valuer. Mr Evans described it as a curio in these proceedings: a non-party asking for something to which they were not entitled, supported by parties using Part 35 which was not applicable, to which DJ Brown found a practical solution under the court's own powers. Costs should be costs in the case, he submitted.
106. The Claimant rode on the First Defendant's coat-tails in respect of this aspect of the matter.

Discussion and Conclusion: Costs of January 2024 Application

107. Technically, the Second Defendant is correct to say that this was a non-application by a non-party in respect of information relating to a non-issue in the proceedings, and he (the Second Defendant) has not broken any rule or practice direction in refusing to supply the information and documents asked of him. Put like that, his argument has some force. However, there are other perspectives and other factors to be taken into account.
108. First, DJ Markland had set out the court's expectations of the parties in relation to the usefulness, if not importance, of valuation evidence (a) in aiding settlement and (b) so that the trial judge would know what the parties were arguing about. The Second Defendant acknowledges the role the valuation would have played in the settlement process. The settlement objective is not one that affects only the parties, and there is a positive duty to engage in the settlement process. As Sir Geoffrey Vos, the Chanceller (as he then was), said in OMV Petrom SA v Glencore International [2017] EWCA Civ 195 at paragraph 39,

"The parties are obliged to make reasonable efforts to settle and to respond properly to part 36 offers made by the other side. A regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably and if they do not the court's powers can be expected to be used to their disadvantage. The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process".

109. That said, I have noted that the parties reached a settlement in principle in 2021 without the aid of a formal valuation. It tends to suggest that the parties were sufficiently informed as to the rough value of the estate for settlement purposes. It is a huge shame that that did not mature into a concluded agreement.
110. In addition, there was a court process which the Second Defendant has skated over. I accept that the valuer's letter had no locus in the proceedings, and can be regarded as something of a curio as Mr Evans said. However, it was reviewed by DJ Markland who had conducted the CCMC and included the recital I have referred to, and she considered that a hearing was appropriate on the back of it. At that point, the Second Defendant was on notice that the court had accepted that the points raised in the letter had some substance. If DJ Markland had refused to order a hearing or make any order, it would have been open to one of the parties to make a formal application relying on the same material. Faced with the such an application, and if the applying party had not got home on Part 31, it is reasonable to assume that the court would have come to the same conclusions as it did pursuant to the letter, and made an order under CPR 3.1(2)(m).
111. Once DJ Markland had made the order for a hearing, the Second Defendant was on notice that the court was entertaining something akin to an N244 application and must have been, or at least should have been, on notice that he had the option to resist or relent his opposition to the requests of the valuer.
112. I have read the skeleton arguments for the First and Second Defendants for the 16 January hearing. The Second Defendant (for the first time according to the First Defendant) ran what I might call the jurisdictional arguments relating to the valuer's non-status in the proceedings. A reasonable reading of DJ Brown's order (including the recitals) is that she accepted that the Second Defendant's technical objections were correct, but that she thought that the information was of sufficient relevance and usefulness to the court that she would invoke the court's own powers to achieve the same aim. That might be characterised as the First Defendant and the valuer being right, even if for the wrong reasons.
113. The Second Defendant seems to have taken umbrage at the valuer's attitude to him (the "ungentlemanly" refusal of assistance), and had decided not to cooperate on the back of it, which stance is difficult to assess from this distance. It cannot be denied, however, that that was an unhelpful stance given the November 2022 recital.
114. The Second Defendant is not taking the position that he did at the January 2024 hearing that his costs should be met by the First Defendant and Claimant, but that costs should be in the case. That would mean that the Claimant would end up paying for this issue which in my judgment would not be just: the main protagonist in support of the valuer and the "application" was the First Defendant.
115. All of the above factors pull the costs decision in different ways. Although the Second Defendant was technically correct, he had the ability to dispose of what DJ Brown ultimately saw as a relevant request for information of his own motion. Some reflection of that contrary stance in the litigation and settlement process has to be reflected in the order.
116. On balance, I order that the Second Defendant should pay 25% of the other parties' costs of and occasioned by the 16 January 2024 hearing.

Indemnity for costs of the Second Defendant

117. The Second Defendant sought an indemnity for his costs from the estate as an executor. On 7 March 2025 I heard Counsel for the Claimant and First Defendant inter alia on this issue, but the Second Defendant relied on written submissions contained in Counsel's earlier skeleton arguments and elsewhere.
118. I concluded that the Second Defendant had taken a neutral stance throughout these proceedings. He neither actively propounded the 2013 Will, no doubt because of his stated doubts about the Deceased's capacity to make it, nor did he adopt the First Defendant's position. The latter would have been difficult to do unless he had renounced his appointment. The 'third way', however, would have been either to simply abide the outcome of the proceedings or to serve his Defence asserting his neutrality and take no further steps in them. The only significant step that he did take was in the matters leading up to and including the 16 January 2024 Application, the majority of which will be covered by the preceding part of this judgment. I agree with Counsel that any other steps he took were outside the scope of his role as an executor, and so I will not grant him an indemnity from the estate from the point after he had filed and served his Defence.

7 March 2025

Note 1   Spiers v English [1907] P 122, at 123    [Back]

Note 2   See the quotation from Mitchell v Gard (1863) 3 Sw & Tr 275cited in Kostic v Chaplinat [8] and the quotation from Spiers v English [1907] P 122, 123cited in Perrins v Hollandat [7].     [Back]