McKenzie v McKenzie

Factual and Procedural Background

This judgment concerns costs arising from proceedings brought by the Plaintiff against the estate of the Deceased following his death on 23 March 2011. The Plaintiff, who is the son of the Deceased, sought the court's approval of the Deceased's Will dated 21 April 2004 ("the first Will") as the last true and valid Will, and requested the court to pronounce against a later Will dated 24 February 2011 ("the second Will") on the basis that the Deceased lacked capacity to make it.

Opposing the Plaintiff was Defendant 1 ("D1"), the Executrix under the second Will and the Plaintiff's sister. The other Defendants included the Plaintiff's brother (D2), brother-in-law (D3), sister-in-law (D4), and another sister (D5). The Deceased's wife had died shortly after the Deceased.

D2, D3, D4, and D5 were beneficiaries under the second Will. D3 and D4 actively defended the Plaintiff's claim with legal aid, D2 was inactive, and D5 appeared but played no active role. D1 defended the claim on behalf of the estate until approximately two weeks before trial, when she agreed to set aside the second Will.

The first Will bequeathed the Deceased's public house to the Plaintiff, subject to rights of residence for the Deceased's wife and D5, and included other property and farmland bequests among the parties. The second Will made different dispositions, including bequests to D3 and D4, and included property the Deceased did not own.

Legal Issues Presented

1. Whether the Plaintiff was entitled to costs out of the estate following the successful challenge to the second Will.
2. Whether costs should be ordered against certain Defendants who were legally aided or against the estate.
3. The entitlement of the Executrix (D1) to costs given her conduct in defending the second Will despite evidence undermining its validity.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the general principle that costs in probate actions are at the court's discretion, with the usual order being that costs follow the event. The Plaintiff, having successfully proved the first Will, was entitled to costs from the estate.

The court considered whether costs should be ordered against certain Defendants (D3, D4, and D5). It concluded that a set off against legacies or devises is not a proper set off as defined in Halsbury's Laws of England, and therefore declined to make an order for costs against these Defendants. Their costs would be taxed under the relevant legal aid schedule, and they might be liable to a charge in favour of the legal aid fund.

Regarding D1, the Executrix, the court found that prior to receiving the report of Professor Day-Cody—who opined that the Deceased lacked capacity to make the second Will—D1 could be considered to have acted reasonably in defending the second Will. However, after receiving the report, D1 should have withdrawn her defence, as continuing to defend caused unnecessary costs to be incurred. The court thus ordered that D1 be entitled to costs only up to the point when she should reasonably have reviewed the report (approximately 50% of total costs), but no costs thereafter. The court emphasized that any complaint D1 has against her solicitor is a separate matter.

The court noted the delay and lack of cooperation in providing evidence from the solicitor who prepared the second Will, referencing the principles in Larke v Nugus regarding the duty to avoid unnecessary litigation costs.

Holding and Implications

The court's final order on costs is as follows:

• The Plaintiff is entitled to his costs from the estate.
• D1 is not entitled to any costs beyond the point she should have reviewed the incapacity report.
• No order for costs is made against D3 and D4, who are legally aided; their costs will be taxed and they may be liable to a legal aid charge on their legacies.
• No order for costs is made for or against D5 due to her limited role.

The decision directly affects the parties' financial responsibilities for costs but does not establish any new legal precedent. It reinforces established principles regarding executors' duties, costs in probate litigation, and the treatment of legally aided parties.