The Court of Appeal has dismissed Karen Farrell’s appeal against an order requiring her to pay 75% of the executors’ party-and-party costs of an application to set aside her caveat against her father’s will. It also allowed the executors’ cross-appeal, removing an exclusion for the costs of two High Court appearances. The court changed the date from which the executors could recover costs from the estate and from Farrell: 13 October 2021 instead of 28 May 2021.
The dispute followed the death of Gordon R. Farrell, who died in November 2019, aged 87. His will, made shortly before his death, left his estate to his son and named Gordon Adams and Mervyn Wedlock as executors. His daughter Karen lodged a caveat in February 2020 after seeking to inspect the original will. She said she had been blocked from doing so and maintained that the caveat was needed while she checked the will. The executors’ solicitors later provided affidavits concerning its execution and offered an inspection through another solicitor. Farrell did not take up that offer.
In July 2022, the High Court set aside the caveats by consent and left the costs question for later. In February 2023, Stack J. ordered that the executors’ costs be paid from the estate from 28 May 2021, excluding costs for appearances on 13 and 20 December 2021. Farrell was ordered to pay 75% of the executors’ party-and-party costs from that date.
The Court of Appeal, in a judgment delivered by Allen J. on 4 January 2024, held that Farrell had not shown reasonable grounds to challenge the will’s validity. It said she had not identified a concern about her father’s testamentary capacity, his signature or the will’s execution. Although the court acknowledged that the earlier lack of engagement by the executors’ solicitor had contributed to Farrell’s distrust, it held that the letters of 13 October and 3 November 2021 provided clear information and an opportunity to inspect the original will. The court said the later opportunity reset the clock for the costs issue.
The court varied the High Court costs order so that the executors’ costs would run from 13 October 2021. It also allowed their cross-appeal to include the costs of the 13 and 20 December 2021 appearances. The judgment provisionally indicated that the executors should receive their appeal costs from the estate and Farrell, with no order for the cross-appeal costs. It gave both parties 14 days from electronic delivery to file short submissions on costs, followed by 14 days for any response. The source does not record a final determination of those appeal-cost submissions.