Richefond & Otrs v Dillon & Otrs – a warning to executors conflating personal interests with the executor role

The judgement in Richefond & Otrs v Dillon & Otrs demonstrates the costs dangers for executors who do not act with neutrality in Will disputes.

Richefond & Otrs v Dillon & Otrs : the case

In the case of Richefond & Otrs v Dillon & Otrs [2023] EWHC 2796 (Ch), Theordora Richefond issued a probate claim to prove the Will of her late partner, Kenneth. She brought the claim as executor alongside two other executors named in Kenneth’s Will. The court decided that only part of the Will was valid because Kenneth did not ‘know and approve’ the gift of residue to Theodora. As such, residue (which was the lion’s share of the estate) passed to Kenneth’s five children in accordance with the rules of intestacy, and Theodora received only a right to reside in Kenneth’s 50% share of their house by that part of the Will which was upheld.

The usual costs order in most litigation is that the ‘loser’ pays the ‘winners’ costs. In this case, Theodora and her co-executors had not proved the whole Will (or the part of it which would have significantly benefitted Theodora), so in essence they had lost. The executors argued that the costs should be borne by the estate up to the date on which witness statements were exchanged, and thereafter each party should bear their own costs – except that they, the executors (by virtue of them being executors) were entitled to an indemnity for their costs from the residue of the estate. This argument was premised on the judgment in Spiers v English [1907] P 122) that there can be exceptions to the usual rule about costs in Will dispute cases. If the executors argument had succeeded however, the residuary beneficiaries, who had successfully argued that the gift of residue to Theodora in the Will had failed, would have ended up paying Theodora’s costs, and the executors foray into litigation would have effectively been risk free.

Whilst the court did not order either side to pay the costs of the other, it did order that the executors were not entitled to an indemnity from the estate for their costs. The executors therefore had to personally pay their own costs from their own pockets, even though two of them had nothing to gain if their claim had been successful. The court said, ‘Theodora as the only executor beneficiary who stood to financially benefit from the success of the claim, is an adult with capacity, who could have brought the claim in her personal capacity.

The executors who have no financial interest could have taken a neutral stance leaving it to the financially interested beneficiaries to engage in hostile litigation at their own risk as to costs. By actively pursuing the claim, rather than taking a neutral stance, the claimants have not acted for the benefit of the estate, but for the benefit of one of their number namely Theodora. That was a course that they took at their collective risk as to the costs order that might follow’.

Comment

If you are an executor named in a Will, it is important to have an understanding of the cost consequences that could follow if the Will is disputed, and how, in your particular circumstance, you should conduct yourself. This case has highlighted that you cannot always assume that your costs will come from the estate. It has also put a spotlight on the potential for conflicts of interest between co-executors in contested Will cases . If you are in doubt about how to deal with a claim that a Will is invalid, or the threat of one, it is essential to take expert legal advice as early as possible to maximise your prospects of being able to rely on an indemnity.

Further guidance and support

Our Contested Trusts & Estates team of specialist lawyers can offer expert advice and representation for individuals, Trust Corporations and Charities when disputes arise in relation to disputed/challenged Wills, contested probate and estates, trust disputes, and inheritance claims. The author, Deborah Cain is head of our dedicated Contested Trusts & Estates team.

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This content is correct at time of publication