A man who successfully challenged his mother's final will is likely to recover the lion's share of his legal costs after the High Court ruled that his brother, who attempted to uphold the will's validity, should pay his costs on the indemnity basis.

In May 2022, two months after his mother's death, the man discovered a new will which left almost all of her £1.2 million estate to his elder brother, while he was left a legacy of just £10,000. After he contested the validity of the will, the High Court found that it was invalid and pronounced in favour of a will she had made in 2020, which largely divided her estate equally between the two brothers.

The Court rejected the man's contention that a clause in the 2020 will appointing his father and brother as executors should be omitted from probate. His father having predeceased his mother, this meant that his brother would be the sole executor. After the case was decided, however, the brother agreed to the appointment of an independent executor.

In a subsequent ruling on costs, the Court noted that the man had been the successful party on all of the key issues, notwithstanding his failure to establish that the clause dealing with appointment of executors should be omitted from probate. It was clearly right in principle that his brother should pay his costs.

The man contended that he had beaten a Part 36 offer he had made, the terms of which were that the 2020 will would be admitted to probate, but would be varied so that the brother would be replaced as executor and would receive an additional legacy of £20,000. The Court observed that, had his brother accepted the offer, the man would have been financially worse off than he was under the outcome of the case. The brother's failure to accept the offer had led to substantial costs being incurred, and the Court found that the man was entitled to costs on the indemnity basis from the date the offer expired.

Upholding the man's argument that his costs before that date should also be assessed on the indemnity basis, the Court found that the brother should have realised well before proceedings had been commenced that there was no reasonable prospect of the 2022 will being held to be valid, as he had been informed that the evidence of the witnesses to the will would be that they had not both been present at the same time.

The Court noted that, even with costs ordered on the indemnity basis, it would still be open to the brother to challenge the man's costs on the grounds of reasonableness. The man was granted a payment on account of about 80 per cent of his costs.