Ashok Kapoor v Baltaj Johal
[2024] EWHC 551 (KB)
Michael Lumb v Stuart Lumb
9 August 2023
[2023] EWHC 2052 (Ch)
High Court
Two brothers fought over their mom's will. The judge said the brother challenging the will had good reasons to do so, even though he lost. The appeals court disagreed, saying the reasons weren't really good enough, and ordered the losing brother to pay the legal costs.
Key Facts
- •Appeal against a costs order in probate proceedings.
- •Claimant (Michael) sought pronouncement in solemn form of the deceased's 2019 will.
- •Defendant (Stuart) gave notice under CPR 57.7(5)(a) not to raise a positive case but to cross-examine witnesses.
- •Deputy District Judge made no order as to costs.
- •The 2019 Will left the estate to Michael, with a gift over to Michael's friend Vance Pearson for his dog if Michael predeceased.
- •Stuart argued the will was invalid due to lack of capacity/knowledge/approval, raising seven grounds.
- •The Judge granted summary judgment for Michael, finding no grounds to doubt the deceased's capacity.
- •The Judge applied CPR 57.7(5)(b), making no costs order as he considered Stuart had reasonable grounds to oppose, despite the lack of success.
Legal Principles
Costs follow the event unless displaced by a rule specific to probate proceedings.
CPR r57.7(5)(a), (b)
Under CPR r57.7(5)(b), the court will not make a costs order against a defendant who gives notice under (5)(a) unless there was no reasonable ground for opposing the will.
CPR r57.7(5)(b)
In summary judgment applications, the claimant must demonstrate a real prospect of success.
CPR r24
In will challenges, the burden of proof on capacity shifts depending on the evidence. If the will is duly executed and rational, there's a presumption of capacity.
Key v Key [2010] EWHC 408 (Ch)
Proof of capacity and due execution creates a prima facie presumption of knowledge and approval, which can be rebutted by clear evidence.
Tristram and Coote’s Probate Practice; Barry v Butlin; Cleare and Forster v Cleare; Tyrrell v Painton
The 'reasonable ground' for opposing a will under CPR 57.7(5)(b) must be based on material before the court or obtainable from witnesses.
Spicer v Spicer
On appeal, due deference should be given to the trial judge's evaluation, but appellate courts can overturn decisions based on incorrect application of law or a mismatch between findings and conclusions.
Re Grayan Building Services Ltd; In re Hitco 2000 Ltd
Outcomes
Appeal allowed.
The Judge incorrectly applied CPR 57.7(5)(b). There was no real prospect of Stuart's grounds preventing the proof of the will; therefore, they were not reasonable grounds for opposing.
Deputy District Judge's costs order set aside.
Costs to follow the event, payable by Stuart to Michael on the standard basis.