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Unstable ground

Shovelar v Lane demonstrates the risks to executors of litigation, says Joseph Goldsmith

28 November 2011

The decision of the Court of Appeal in Shovelar v Lane [2011] EWCA Civ 802 confirms that the rule in contentious probate claims that allows, in appropriate circumstances, the costs of all parties to be paid out of the testator’s estate does not apply in the context of a claim that the distribution of an estate is subject to a constructive trust arising from mutual wills. The decision also provides a salutary reminder to executors that they may be personally liable in costs if they unsuccessfully defend on behalf of the estate a mutual-wills claim by a third party.

The general rule, as set out in rule 44.3(2) of the Civil Procedure Rules (CPR), is, of course, that litigation costs follow the event. However, in contentious probate claims there is a long-established exception that has survived the introduction of the CPR. It applies where the cause of the litigation is the fault of the testator, or of persons who are interested i...

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