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21st December 2015

Brennan -v- Prior: A warning on costs

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The 2015 case of Brennan –v- Prior [2015] EWHC 3082 (Ch) is an important reminder of the costs risks faced by litigants and the potentially life changing implications of losing a hard fought case at trial.

The 2015 case of Brennan –v- Prior [2015] EWHC 3082 (Ch) is an important reminder of the costs risks faced by litigants and the potentially life changing implications of losing a hard fought case at trial.

The Facts

The claim related to the validity of the Will of François Anthime Devillebichot dated 19 February 2011. François died on 3 March 2011, less than 2 weeks after the Will was executed.

The Claimant was Chloe Brennan, the Deceased’s only daughter. The Defendants were the Deceased’s cousins who were the Executors named in the Will and the Deceased’s four siblings. The Will left a pecuniary legacy of £100,000 to Chloe and a studio flat in France to the Deceased’s sister. The residuary estate was divided equally between the siblings.

Chloe challenged the validity of the Will on the grounds that it was not duly executed, that the Deceased lacked capacity to make the Will, that he did not have knowledge and approval of its contents or that it was procured by undue influence. Chloe acted as a litigant in person throughout the proceedings. Her case was based on her belief, given the Deceased’s failure to make a Will in the 60 years leading up to his death, that her father was content to die intestate so that she would inherit his entire estate. Notably, Chloe did not rely on any positive evidence in regard to the circumstances in which the Will was made. Rather, she claimed that the evidence given in opposition to her claim was untrue and perjured.

The Decision

The High Court dismissed Chloe’s claim in its entirety and upheld the validity of the Will. The evidence of the Executors who witnessed the execution of the Will stood up to cross examination and, although there was some failure to observe best practice in the preparation of the Will, there was no reason to suggest that the Deceased did not know and approve of its contents. Furthermore, there was no evidence whatsoever to suggest the Deceased lacked capacity. As to undue influence, while the Judge considered that there may have been some persuasion of the Deceased by the siblings, this had not amounted to coercion such as to overpower his freedom of action.


Both the Executors and the siblings sought orders for costs against Chloe on the indemnity basis, due to her allegations of misconduct and perjury. The costs of the Executors were said to be in the region of £87,000 with the siblings’ costs being considerably more. The Executors asked the Court to order that their costs be paid as a priority from Chloe’s legacy under the Will with the siblings’ costs to be paid from the balance. The Judge agreed and the Defendants’ costs were awarded with a proportion of these payable on the indemnity basis.

During the costs assessment proceedings confusion arose as to whether Chloe’s liability for costs was to be limited to the £100,000 legacy under the Will. The matter was referred back to the High Court who confirmed that no such limitation applied. Chloe remained liable for the entirety of the Defendants’ costs notwithstanding the fact that these would significantly exceed the size of her legacy under the Will and would result in her facing severe financial difficulties to pay the debt.

This case is a stark reminder that costs in probate actions will not generally be paid from the estate. This is a common misconception. As we see here, the usual rule will apply and costs will be ordered against the unsuccessful party, often with detrimental effect. Had Chloe sought professional legal advice at an early stage she would no doubt have appreciated the costs implications of proceeding with her claim and raising spurious allegations against the Defendants.

If you would like any further information or advice about claims relating to the validity of Wills please contact Kate Harris on 01223 461155 or click here to email Kate.

For more information please visit our Dispute Resolution and Litigation page.