High Court Rules on Costs of Will Dispute

Those responsible for administering an estate are generally entitled to recover the costs properly incurred in doing so from the estate. Recently, the High Court ruled on whether costs concerning a dispute over a will and an application to remove the executor should be borne by the estate.

The deceased woman had left her share in a partnership to one of her sons. Her daughter, who was also the executor of her estate, took the view that, as the woman had become incapacitated before her death, the partnership had dissolved under the partnership agreement and the gift therefore adeemed, or failed because the asset given had ceased to exist. The son having passed away, his wife sought a declaration that the gift had not adeemed, and also sought the daughter’s removal as executor. After both of these claims succeeded, she argued that the daughter should pay the costs arising from them.

The Court noted that it was common ground that no previous case had dealt with the question of whether, if a partnership had dissolved by the time of the testator’s death, a gift of an interest in it adeemed. It would have been reasonable for the daughter, as executor, to seek the Court’s direction on the matter herself, and it was in the interests of the estate for it to be resolved. The costs of doing so were thus properly incurred and should come out of the estate.

However, the Court concluded that the daughter should bear the costs of the application to remove her as executor, or alternatively that they should be paid out of her share of the estate. She had contended that the estate had been administered properly and there was no cause for her removal. The Court having rejected that assertion, the costs of defending the application were not properly incurred.