Grierson v Grierson

Factual and Procedural Background

The court delivered judgment on 20 November 2024 concerning a dispute over the validity of two wills dated 2020 and 2022, and a Declaration of Trust related to the estate of the deceased. The court declared the 2020 Will valid, including clause 1, pronounced against the validity of the 2022 Will, and declared the Declaration of Trust void. Clause 1 of the 2020 Will appoints two individuals as executors and trustees, but as matters stand, one individual ("Robert") is the sole executor of the estate. The opposing party ("Duncan") had sought the appointment of a new professional administrator if clause 1 were omitted from probate. Following the judgment, Robert consented to appointing an independent administrator, Freeths Trustees Limited ("Freeths"). A draft order reflecting these decisions and consents was provided by counsel for Duncan. The court considered which parts of the proposed order were appropriate to include, particularly excluding certain obligations on Robert to which he had not consented.

Legal Issues Presented

1. Whether the 2020 Will, including clause 1, should be admitted to probate and the 2022 Will declared invalid.
2. Whether the Declaration of Trust is void.
3. The appropriate form of order following the substantive judgment, including the appointment of an independent administrator.
4. Who should bear the costs of the proceedings and on what basis.
5. The application and consequences of CPR Part 36 offers and costs orders.
6. Whether an indemnity basis for costs before the relevant period is justified based on conduct of the parties.
7. The appropriate amount for a payment on account of costs pending detailed assessment.

Arguments of the Parties

Appellant's Arguments (Duncan)

• Duncan sought to omit clause 1 of the 2020 Will from probate and to have an independent administrator appointed.
• Duncan made a Part 36 offer proposing the 2020 Will be admitted to probate, but with the Defendant replaced as executor by an independent administrator, an additional pecuniary legacy to Robert, and administration on the basis that Robert had no equitable interest in the Property.
• Duncan contended that he had beaten his Part 36 offer and sought the costs consequences under CPR 36.17(4).
• Duncan argued that costs prior to the relevant period should be assessed on the indemnity basis due to Robert's unreasonable conduct, including advancing a false case and conduct likely to increase costs.
• Duncan requested a payment on account of costs pending detailed assessment.

Respondent's Arguments (Robert)

• Robert did not consent to certain additional obligations proposed in the draft order, such as giving possession of the Property to Freeths.
• Robert opposed the omission of clause 1 of the 2020 Will but later consented to the appointment of Freeths as administrator.
• Robert did not accept Duncan's Part 36 offers and defended the proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Leonard v Leonard [2024] EWHC 979 (Ch)	Common law exceptions to the general rule on costs liability under CPR 44.2(2)(a).	The court found that the exceptions discussed in Leonard v Leonard did not apply in this case, affirming the general rule that Robert should pay Duncan's costs.
Lamport v Jones [2023] EWHC 667 (Ch)	Assessment of non-money claims under CPR 36.17 and the test for whether a judgment is "at least as advantageous" as a Part 36 offer.	The court applied the guidance from Lamport v Jones to conclude that the judgment was at least as advantageous to Duncan as his Part 36 offer, justifying costs consequences under CPR 36.17(4).
Carver v BAA Plc [2008] EWCA Civ 412	Open-textured approach to assessing whether a judgment is more advantageous than a Part 36 offer in non-money claims.	The court cited Carver as persuasive authority supporting a broad comparison of relief obtained versus the offer in non-money claims.
Excelsior Commercial & Industrial Holdings Ltd v Salisbury Homer Aspden & Johnson [2002] EWCA Civ 879	Criteria for awarding indemnity costs where conduct is outside the ordinary and reasonable conduct of proceedings.	The court used this precedent to justify awarding indemnity costs for conduct amounting to unreasonable litigation behaviour.
Franks v Sinclair [2006] EWHC 3656 (Ch)	Award of indemnity costs for propounding a will despite knowing it was invalid, and refusing reasonable settlement offers.	The court considered this case analogous in principle for awarding indemnity costs due to conduct amounting to unreasonable litigation behaviour, though noting distinctions in settlement offers.
Burgess v Lejonvarn [2020] EWCA Civ 114	Unreasonable conduct to a high degree, including bringing speculative or weak cases, justifies indemnity costs.	The court cited Burgess to support the proposition that indemnity costs can be awarded for high degree unreasonable conduct.
Esure Services Ltd v Quarcoo [2009] EWCA Civ 595	Definition of "out of the norm" conduct justifying indemnity costs.	The court applied this precedent to conclude that Robert's conduct was sufficiently outside ordinary proceedings to warrant indemnity costs.

Court's Reasoning and Analysis

The court first affirmed the validity of the 2020 Will, including clause 1, and rejected the validity of the 2022 Will and the Declaration of Trust. The court noted Robert's consent to appointing an independent administrator, Freeths, and incorporated this into the order, excluding additional obligations to which Robert had not consented.

On costs, the court held that Robert should pay Duncan's costs as Duncan was successful on all key issues. The court rejected exceptions to the general costs rule, referencing Leonard v Leonard. It considered Duncan's cancellation of a planned mediation but did not penalise him for it.

Regarding the Part 36 offer, the court applied the principles from Lamport v Jones and related authorities to assess whether the judgment was at least as advantageous as the offer. It concluded that despite Robert not being replaced as executor by the judgment (only by consent), the financial terms of the offer meant the judgment was at least as advantageous to Duncan, triggering the costs consequences under CPR 36.17(4).

The court then considered whether indemnity costs should apply before the relevant period. It found Robert's conduct unreasonable and outside the norm, citing precedents such as Excelsior Commercial and Franks v Sinclair. Examples included Robert advancing a false case, ignoring evidence about the invalidity of the 2022 Will, and conduct likely to increase costs. The court concluded indemnity costs were justified.

Finally, the court addressed Duncan's request for a payment on account of costs pending detailed assessment. It noted that incurred costs were substantially lower than budgeted due to the undefended claim and reduced trial time. The court set the payment on account at approximately 80% of incurred costs, £160,000 plus VAT, allowing Robert to challenge reasonableness at detailed assessment.

Holding and Implications

The court held:

• The 2020 Will, including clause 1, is valid and admitted to probate.
• The 2022 Will is declared invalid.
• The Declaration of Trust is void.
• Freeths Trustees Limited is appointed as independent administrator of the estate with Robert's consent.
• Robert must pay Duncan's costs of the proceedings on the indemnity basis from 2 April 2024, with interest and an additional sum as prescribed by CPR 36.17(4).
• Indemnity costs are also justified for the period before 2 April 2024 due to Robert's unreasonable conduct.
• A payment on account of £160,000 plus VAT is ordered to Duncan pending detailed assessment of costs.

Implications: The decision enforces the validity of the 2020 Will and the appointment of an independent administrator, reflecting the parties' consents and court's findings. The costs order, including indemnity costs and interest, penalises the unsuccessful party for unreasonable conduct and failure to accept a Part 36 offer, reinforcing the importance of reasonable litigation behaviour and settlement efforts. No new legal precedent was established; the court applied existing principles and precedents to the facts.