The High Court awarded both sides their costs from the estate of Brian Rhatigan for the first module of a dispute over his will. For the second module, it awarded the defendant her costs from the estate, made no order for the plaintiff’s costs and declined to make the plaintiff personally liable for the defendant’s costs.
The ruling, delivered by Ms Justice Laffoy on 1 October 2012, concerned costs after two earlier decisions. In December 2010, the court admitted the will to probate in solemn form, finding that Rhatigan had testamentary capacity when he made it. In March 2012, it found that the plaintiff, the surviving executrix, was conflicted and should not receive probate in that capacity.
The defendant had challenged the will’s validity, citing Rhatigan’s motor neuron disease and inability to communicate verbally when he made it. Although unsuccessful in the first module, she sought her costs from the estate. Justice Laffoy found there were reasonable grounds for the challenge and that the defendant had conducted it bona fide. She therefore awarded the defendant costs from the estate. She also rejected the defendant’s submission that the plaintiff should lose her first-module costs; both sides were entitled to those costs from the estate, to be taxed if they could not agree.
The second module concerned whether the plaintiff was an appropriate person to act as personal representative. The court had found that her past professional work for Rhatigan and companies holding assets he had settled created professional and fiduciary conflicts. The judgment said those conflicts would prevent her from protecting the interests of beneficiaries of the will.
Justice Laffoy concluded that, after the first module, the plaintiff should have recognised the seriousness of the conflict and not pursued probate in her own capacity. Her defence of the second module was unreasonable, the court found, so she could not recover its costs from the estate. But the judge declined to make her personally pay the defendant’s costs, citing the facts that emerged over time, the hindsight involved in assessing the conflict, and the unpursued allegations against the plaintiff that remained in the background. The defendant’s second-module costs were instead payable from the estate; the plaintiff received no costs for that module.
The judgment addressed costs only. It did not determine whether the estate was insolvent. The parties had agreed that remaining claims from the defendant’s counterclaim not covered by the earlier rulings would be struck out. The court had separately ordered on 18 April 2012 that accountant Tom Kavanagh could extract letters of administration with the will annexed, finding the defendant also had a conflict of interest.