The late emergence of a Will during a dispute and its implications on costs

13 June, 2019

In the recent case of Gaskin v Corus Law Ltd and another [2019] EWHC61(Ch)] the court considered the implications on costs of the late emergence of a Will in a probate dispute.

 Eileen Gaskin died in 2012 and at that time it was assumed that she had no Will. Under the rules of intestacy her three children would have benefitted from her estate. In 2013 Mrs Gaskin’s daughter took initial steps towards administering the estate, she extracted the grant and instructed and executed a power of attorney in favour of Chorus Law Limited. Little progress was then made to administer the estate in the following years, Mrs Gaskin’s daughter having repeatedly told Chorus Law Ltd that she was not living at the property but was clearing it for sale.  Eventually, Mrs Gaskin’s son lost patience and brought a claim against both his sister and the company for their removal and replacement.

 The probate company eventually agreed to its removal but his sister did not. Then a Will was subsequently discovered which named his sister as sole executor and residuary beneficiary. By this time almost £180,000 in costs had been incurred between the three parties and all of them sought for payment of their costs by the others.

The court found that, in respect of the costs incurred up to the date the Will was found, the company and Mrs Gaskin’s daughter were equally to blame for the delays and they were both ordered to pay the claimant’s costs. With regard to costs incurred after the Will was found up to the date of the company’s removal, the court ordered that half of the costs incurred by Mrs Gaskin’s son and half of his sister’s costs should be paid by the estate and the company. Finally, with regard to the costs incurred following this date (in disputing who should pay the costs), the court ordered half of Mrs Gaskin’s son’s costs to be paid by his sister and half by the company.

The lesson to be learned from this is that, even if a Will is discovered substantially changing a situation, personal representatives will not be let off the hook for the steps taken by them (or, indeed, the lack of steps taken) or potential breaches of their duties during their handling of the administration.