Contentious probate

Wharton v Bancroft and Ors [2012] EWHC 91 (Ch); 30 January 2012

In probate cases the court was required to consider two particular sets of circumstances which might necessitate a disapplication of the general rule in order to achieve justice; it also required a consideration of the same factors as ought to be considered in any other litigation. First, while remembering that costs were always awarded at the discretion of the court, it was recognised that if the cause of the litigation had its origin in the fault of the testator or of those interested in residue, then the costs might properly be paid out of the estate. The reality of such an order would be that the person who had succeeded in proving the existence of a will would pay the unsuccessful side’s costs.