Will they or won’t they?

In Breslin v Bromley [2015] EWHC 3760 (Ch) the claimant (C) was the executor and beneficiary of his aunt’s will. He took his aunt to have her will prepared by a solicitor. The aunt did not execute the will before that solicitor but did so elsewhere, in circumstances which led to the second defendant (D2) requiring the will be proved in solemn form by cross examining the witnesses who attested, and leading to an allegation of undue influence by the third defendant (D3) (which claim was later abandoned). However, C was successful in his claim that the will was valid. Therefore the court had to determine the appropriate costs order.

The normal rule was that costs follow the event and C had succeeded in his claim. In probate proceedings an order for costs could be made out of the estate where the testator, or a principal beneficiary, was “really the cause of the litigation”. The court could also leave the parties to pay