A salutary reminder of how the burden of costs can fall should a challenge to the validity of a Will fail or be abandoned is set out in this article from STEP reporting the recent case of Goodwin v Avison. In my experience it is a common misconception that a challenge to a deceased individual's Will, even should it fail, will come at no cost to the challenger but rather the costs will be borne by the estate. However this case re-iterates that should the challenge be spurious or indeed be abandoned mid-action that the Courts are likely to require the challenger to pay both their own and the estate's costs of defending the action to that point.
As with all such matters the legal default is that that the Courts have the ultimate discretion as to which party will be required to pay the legal costs involved. Case law has established the principle that if the dispute/uncertainty arises as a result of the testator's own conduct that all parties can look to the estate's funds to settle any associated costs. Similarly, as this article outlines, if the party who challenges the Will has reasonable grounds for doing so, then each side should bear their own costs (significantly the challenger does not become liable for the estate's costs) even if they lose. However, in the event that the action does not fall within any of the above categories, the standard approach to litigation costs will apply - being that the loser pays the costs of both parties.
This specific case highlights the need to consider closely into which of the above categories any such action would fall before being embarked upon by an individual(s) seeking to challenge a Will less they run the risk of significant costs being incurred.
Davis-White HHJ was satisfied that the unsuccessful defendants must pay both their own and the claimant's costs. On all of the three issues raised by the different defendants, none could be said to be the caused by the testator, who had simply accepted help in amending his previous will and had not misled anyone about his intentions. Moreover, Davis-White did not think the defendants had reasonable grounds for challenging the will.