Doe vs Mallon & Mallon

This case concerned the validity of a will executed by the deceased and the associated costs of litigation.

TLDR:

• The plaintiff challenged the validity of the deceased's will.
• The court found the will to be valid and dismissed claims of undue influence.
• The plaintiff was ordered to pay the defendants' costs on a standard basis.
• The court also addressed an outstanding claim under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979.

The plaintiff appeared in person, while Patrick Lyttle KC and Rory McNamee, instructed by Mallon & Mallon, represented the defendants. The case was presided over by Humphreys J.

On 23 November 2022, the court dismissed the plaintiff's claims regarding the validity of the will executed by the deceased on 17 July 2018 and admitted it to proof in solemn form. The court then invited submissions on two outstanding issues: costs and the plaintiff's claim under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979.

The court found that the deceased had the requisite capacity to make the will and that there was no evidence of undue influence. The chronology of events showed that the plaintiff raised concerns about testamentary capacity, which were addressed by Mr. Mallon. Despite this, the plaintiff pursued litigation, compelling the defendants to prove the will in solemn form, incurring significant costs.

The court adopted the principles set out in McGarry v Murphy [2021] NICh 21 regarding costs in probate actions. The general rule is that costs follow the event, with exceptions if the testator or interested parties caused the litigation or if circumstances reasonably led to an investigation of the matter.

The plaintiff argued against an order for costs, citing various points, including the lack of response to Larke v Nugus correspondence and ongoing proceedings under the 1979 Order. However, the court found these points unpersuasive, noting that Mr. Mallon had complied with his professional duties and that the plaintiff's claims were without merit.

The court ordered the plaintiff to pay the defendants' costs on a standard basis, rejecting the request for indemnity costs as the case was weak but not hopeless. The court also addressed the plaintiff's claim under the 1979 Order, deciding to treat the application as having been commenced by originating summons and giving further directions for its determination.

For the avoidance of doubt, the court ordered the plaintiff to pay the defendants' costs of the application to be taxed on the standard basis.

Legal representatives: Patrick Lyttle KC and Rory McNamee (instructed by Mallon & Mallon) for the defendants.

Judicial Panel: Humphreys J

Case Citation Reference: [2023] NICh 22