Failure of a gift of residue results in that part of the deceased’s estate devolving under the rules of intestacy.
The High Court considered the impact of the rules of intestacy in such circumstances in Richefond and others v Dillon and others [2023] EWHC 2796 (Ch).
The case concerned the will of Kenneth Grizzle and a dispute between his executors – his partner Theodora, their son Lee and Theodora’s sister Lucia – and the Grizzle children, Hope, Jo-Ann and Leonard, Kenneth’s children from his marriage to Ena. Kenneth and Theodora’s daughter Kym and Theodora’s son Gary were joined to the proceedings but played no active part.
The main assets of the estate were a property at Stanley Road and another at Sebert Road, which Kenneth had owned jointly with Ena and of which he became sole owner by survivorship on her death.
If Kenneth’s will had been fully effective, a gift of 50% of the property at Stanley Road would have gone to trustees to allow Theodora to live there as long as she wished with the remainder interest to be divided between his three children with Theodora – Lee, Kym and Gary – and a gift of residue to Theodora.
However, the judge decided that those drafting the will had failed to ensure that Kenneth fully understood and approved the gift of residue and as a result the gift failed. Consequently, Kenneth’s residuary estate devolved under the rules of intestacy and was to be divided five ways between his children from both his marriage and his relationship with Theodora – Hope, Jo-Ann, Leonard, Lee and Kym.
The usual cost rules provide that the unsuccessful party will be ordered to pay the successful party’s costs. However, in probate cases where the deceased or those interested in the residue have been the cause of the litigation, costs may be paid from the estate. Additionally, if the circumstances lead reasonably to an investigation of the matter, the costs may be left to be borne by those who incurred them.
The parties had a direct interest in either pursuing or defending the claim: Theodora in establishing that the trust and residuary gift were effective; the Grizzle children, Lee and Kym, in establishing an intestacy in whole or part. The judge decided that neither cost exception applied and neither party should be ordered to pay the costs of the other. The claimants were not entitled to an indemnity from the estate and the Grizzle children’s costs would be paid from the residue before its division.
Louise Clark is a property law consultant and mediator
