The High Court ordered the estate of George Moore to pay the costs of his daughter’s probate motion, finding that the application could have been avoided if his executor had proved the will sooner or disclosed its existence when the daughter’s solicitors raised representation of the estate.
Mr Justice Allen gave the ruling on costs on 14 January 2022. The motion, brought under section 27(4) of the Succession Act 1965, sought liberty for solicitor Geraldine Coghlin to apply for letters of administration limited to proceedings the daughter intended to bring against the estate. The court said the motion’s purpose was to ensure that the intended action would be properly constituted, and that she had achieved that purpose.
The daughter’s 2017 Succession Civil Bill sought relief concerning land transfers, including a declaration that the properties formed part of the estate and orders under the Act. The action was discontinued in November 2019. The probate motion had been issued before that discontinuance, and its grounding affidavit did not explain the earlier action. The court said this could have been set out more clearly, but the omission and timing did not deprive the High Court of jurisdiction.
The motion proceeded on the premise that Moore had died intestate. In response, nephew Lexie Mortimer produced a 2004 will appointing him executor and leaving the house to Moore’s brother and farmland to two nephews. A 2005 codicil left a car to another nephew. At the January 2020 hearing, Mortimer said he would prove the will; probate was granted on 5 June 2020. That left the parties’ dispute over the motion’s costs for the court to decide.
The daughter argued that the motion had been necessary and that the executor’s undertaking to prove the will resolved it. She also sought a wasted costs order against the notice parties’ solicitors, alleging that earlier disclosure of the will could have avoided litigation. The notice parties disputed her position, challenged the motion and sought costs against her or her solicitors. Those were submissions, not findings on the merits of the proposed claim.
Justice Allen said the executor could have proved the will in the years after Moore’s death, or disclosed it after the daughter’s solicitors said in May 2019 that they were arranging an administrator ad litem. He described the failure to be forthcoming about the will, followed by opposition that was abandoned late in the process, as the root cause of the motion’s costs. He ordered the estate to pay the daughter’s costs and made no order for the notice parties’ costs. He did not decide the underlying property and succession claims. He also declined to proceed with either side’s request for a wasted costs order, saying that doing so would require calling on the solicitors to show cause and would further increase costs.