Key Facts
- •Claim under CPR Part 8 relating to the estate of Vincent William Cashinella.
- •Dispute over the distribution of the residuary estate.
- •Manuscript amendments to the will were a key point of contention.
- •Allegations of misappropriation of funds from Iris Daniels' estate.
- •Multiple offers to mediate were made but rejected by the claimant.
- •First and second defendants initially contested the claim but later conceded most issues.
Legal Principles
Costs are in the discretion of the court.
Senior Courts Act 1981, section 51(1); CPR rule 44.2(1)
General rule is that the unsuccessful party pays the costs of the successful party.
CPR rule 44.2(2)(a)
Court may make a different order regarding costs.
CPR rule 44.2(2)(b)
In deciding costs, the court will have regard to all the circumstances, including conduct of all the parties and any admissible offer to settle.
CPR rule 44.2(4)
Trustee Act 2000: A trustee is entitled to be reimbursed from the trust funds for expenses properly incurred.
Trustee Act 2000, section 31(1)
CPR rule 46.3: A trustee or personal representative is entitled to be paid costs out of the trust fund or estate.
CPR rule 46.3
Dependant relative revocation: If the intention to revoke is dependent on a condition which is not fulfilled, the revocation does not take effect.
Re McCabe (1873) LR 3 P & D 94
Wills Act 1837, section 21: No alteration made in a will after execution is valid unless executed in the same manner as the will.
Wills Act 1837, section 21
Silence in the face of an invitation to participate in ADR is, as a general rule, unreasonable.
PGF II SA v OMFS Company 1 Ltd [2014] 1 WLR 1386
An executor will lose indemnity if guilty of misconduct.
Turner v Hancock (1882) 20 ChD 303
Outcomes
Claimant entitled to 66.66% of the residuary estate.
Manuscript amendments to the will were invalid due to lack of proper attestation under the Wills Act 1837, section 21. The doctrine of dependant relative revocation applied to the obliteration of the claimant's original share.
Claimant awarded 50% of her costs against the first three defendants.
Claimant was the successful party, but her failure to engage in mediation and the irrelevant focus on Iris Daniels' estate were considered.
First defendant deprived of executor's indemnity.
First defendant's late concession on the 'removal' part of the claim constituted misconduct, despite lack of bad faith.