Historically it was more common for the cost of estate disputes to be borne by the Estate.  The view, as expressed by the Court of Appeal in Keelan v Peach being that the courts are reluctant to exacerbate family rifts with personal costs orders.

However, as litigation costs balloon, increasingly costs are following the event.  Also, where an estate is small, it is important that matters be kept proportionate.  Consider the case of Shovelar v Lane where the costs for the sucessful party in a will dispute regarding a failed mutual will arrangement were more than 2.6 times the amount of the estate in question.

Shovelar v Lane highlights the importance of taking a principled approach to costs.  Things to keep in mind with estate litigation costs:

• costs are always at the court’s discretion (never presume a certain outcome)
• settlement should be seriously contemplated before costs take on their own demonic life form
• executors need to carefully consider if, or when, they should take an active part in litigation rather than biding by the decision of the court.  Where beneficiaries are minors or incapacitiated a more active role might be necessary – if in doubt the executors would be wise to seek directions from the court.

Where strongly held views are maintained, the importance of maintaining a sense of perspective cannot be over-estimated.  Where parties to a dispute reach their own resolution, such that it is no appropriate for “costs to follow the event”, all parties being sucessful to a certain extent, it is important to appreciate that liely, no more than scale costs will be recoverable from the estate (apart from the trustees / executors, who will more likely recover full costs where a ‘watching brief” has been maintained: see Mather v Mortlock.

Executors who fail to stand aside when their own interests conflict with their fiduciary obligations can find themselves liable for costs incurred both as an executor and trustee and further costs incurred as a non-party following removal.  See Courteney v Pratley where costs with a 50% up-lift were ordered against Mr Courteney who the court found to be untruthful, to have failed to have disclosed estate assets and to have contributed unnecessarily to the time and expense of the proceedings.

Where litigation arises due to fault that can be attributed to the will-maker, that can avoid the general proposition that costs follow the event.  See In re Paterson (deceased), which sets out the two situations where the presumption regarding costs  should be displaced:

(i.) If the litigation originates [at] the fault of the testator—eg by the
state in which he left his testamentary writings, or by his eccentric or
irrational habits and mode of life—or of those interested in the
residue the costs may properly be paid out of the estate.
(ii.) If there be sufficient and reasonable ground, looking to the
knowledge and means of knowledge of the opposing party, to
question either the execution of the will or the capacity of the
testator or to put forward a charge of undue influence or fraud, the
losing party may properly be relieved from the costs of his
successful opponent.

This was confirmed in McFadzean v Moleta.  Also see Cartwright v Joseph where Moore J noted at [24] that:

“… As has been said, in determining costs it is still the duty of the Court to stand in the shoes of the deceased to secure the proper discharge of his or her moral duty to qualifying beneficiaries…”

References:

• Keelan v Peach (Costs) [2003] NZFLR 727
• Shovelar v Lane [2011] EWCA 802
• Re Schroeder’s Wills Trusts [2004] 1 NZLR 695
• Mather v Mortlock [2013] NZHC 1930
• Courteney v Pratley [2018] NZHC 1588
• In re Paterson (deceased) [1924] NZLR 441
• McFadzean v Moleta [2013] NZHC 2694
• Cartwright v Joseph [2019] NZHC 1093