Wharton v Bancroft and others [2012] EWHC 91 (Ch), [2012] All ER (D) 33 (Feb)
In probate cases the court was required to consider two particular sets of circumstances which might necessitate a disapplication of the general rule in order to achieve justice; it also required a consideration of the same factors as ought to be considered in any other litigation. First, while remembering that costs were always awarded at the discretion of the court, it was recognised that if the cause of the litigation had its origin in the fault of the testator or of those interested in residue, then the costs might properly be paid out of the estate. The reality of such an order would be that the person who had succeeded in proving the existence of a will would pay the unsuccessful side’s costs.
The second set of circumstances that might cause a disapplication of the general rule was that if there were sufficient and reasonable grounds (looking at the knowledge and means of knowledge of the parties opposing the will) to question the validity of the will, then it might be proper to
