High Court orders costs for will construction dispute against beneficiaries personally, not from estate.

THE HIGH COURT [2026] IEHC 421

Record No. 2021/5330P

IN THE MATTER OF THE ESTATE OF WILLIAM DOYLE DECEASED, LATE OF BEALALAW, MYSHALL IN THE COUNTY OF CARLOW

BETWEEN PETER MURPHY PLAINTIFF AND

MONICA BUTLER (OTHERWISE MONICA MURPHY), SEAN ROBERTS, P.J. ROBERTS, MARTIN ROBERTS, GRETTA ROBERTS AND MAURICE ROBERTS

DEFENDANTS

JUDGMENT of Ms. Justice Egan delivered on the 27th day of April, 2026

Introduction

1. This judgment deals with the question of costs following this court's two prior judgments delivered in this construction suit concerning the last will and testament (“the Will”) of William Doyle ("the deceased").

2. The question for resolution was whether a gift to the plaintiff, a nephew of the deceased, of "my…lands at Belalaw (sic), Myshall in the County of Carlow" devised to him the entirety of the deceased’s lands or whether, on the other hand, the bequest was limited to only those lands situated in the townland of Bealalaw and excluded lands situated in the townlands of Myshall and Raheenleigh. In the latter eventuality, the Myshall and Raheenleigh lands would fall into the residue of the deceased's estate and were to be divided nine ways between the residuary legatees. The first defendant, a niece of the deceased, is the executrix (“the executrix”). The second to sixth defendants (collectively “the Roberts defendants”) are five of the nine residuary legatees. The other four residuary legatees did not participate in the proceedings (“the nonparticipating residuary legatees”).

3. In my module 1 judgment of 1 February 2024, I determined that there was an ambiguity on the face of the Will as to the meaning of the words "my…lands at Belalaw (sic), Myshall in the County of Carlow". These words could refer either to the entirety of the deceased’s residential farm identified by its postal address or to only those parts of the deceased's lands which were situate in the townland of Bealalaw. As the Will was not clear and unambiguous, I determined that extrinsic evidence might be admitted in accordance with section 90 of the Succession Act 1965 (“s. 90”) to show the intention of the deceased and to assist in the construction of the Will.

4. In delivering my module 1 judgment, I noted that the estate was reasonably modest and might be severely impacted by the likely costs of the module 2 hearing. I encouraged the parties to enter into mediation to attempt to resolve their difficulties. I also indicated that neither the plaintiff nor the second to sixth defendants should assume that their legal costs would be awarded out of the estate.

5. The parties engaged in mediation in November 2024, which was ultimately unsuccessful. Subsequent to the mediation, an application was made by the solicitors representing the second to sixth defendants for liberty to come off record on behalf of certain of the Roberts defendants. This was on the basis that there had been an irretrievable breakdown in the relationship of solicitor and client. On 29 January 2025, I granted the former solicitor for the second, fourth and fifth named defendants, Sean Roberts, Martin Roberts and Gretta Roberts, liberty to come off record on their behalf. Subsequently, the third and sixth defendants, Peter Roberts and Maurice Roberts (“the withdrawing Roberts defendants”) informed the court that they intended to take no further part in the proceedings. In addition, a new solicitor came on record for the second, fourth and fifth defendants, Sean Roberts, Martin Roberts and Gretta Roberts, who wished to continue the litigation on their own behalf (“the remaining Roberts defendants”).

6. By letter of 13 November 2024, the plaintiff made an offer without prejudice save as to costs to the Roberts defendants. The letter communicated the plaintiff's confidence that upon hearing the extrinsic evidence relating to the last will and testament of the deceased, the court would accede to the plaintiff's interpretation of the Will. Notwithstanding this, in order to prevent the estate being dissipated by the costs of module 2, the plaintiff made an offer to settle on terms that the parties would agree to his interpretation of the Will and that (subject to some other minor matters being attended to) he would make a payment of €50,000 to the Roberts defendants. The letter also proposed that subject to the above being agreed, an order for the costs of all parties, to include reserved costs and the costs of mediation, would be borne by the estate. The letter stated that, if its terms were not accepted, then the plaintiff would proceed to obtain a hearing date for module 2 of the construction suit. This offer remained open for acceptance by the Roberts defendants for one week.

7. The executrix broadly agreed to the plaintiff’s proposal, but no response was received from the Roberts defendants to this offer.

8. In my module 2 judgment, delivered on 14th November 2025, I determined that the extrinsic evidence of Mr. William Clarke, solicitor, was properly admissible under s. 90 and that same resolved the ambiguity found to exist in the Will. I found that Mr. Clarke's testimony, supported by a memorandum which he drew up on 26 November 2019 (some 15 days after the death of the deceased), established on the balance of probabilities that the correct construction of the Will was that the phrase "my… lands at Bealalaw (sic) Myshall” included all of the lands comprised in the folio.

9. It is relevant to note that the memorandum of William Clarke of 26 November 2019 was forwarded by the plaintiff to the remaining Roberts defendants in March 2025 which was some months prior to the module 2 hearing on 24th and 25th June 2025. This memorandum of William Clarke was included in the core book of documents and Mr. Clarke was included on the list of witnesses intended to be called. The remaining Roberts defendants were therefore wholly aware as of March 2025 (a) that William Clarke would be called to give evidence, (b) the precise evidence which William Clarke would give in relation to his attendance on the deceased for the purposes of redrafting his Will, and (c) the contents of the memorandum which William Clarke had prepared as of that date. Specifically, the remaining Roberts defendants were aware that Mr. Clarke's evidence would be (a) that the deceased’s clear instruction to him had been that the only change that he wanted to make to his prior Will from 1998 (in which he had left all of his farmlands to the plaintiff) was to the residuary clause, (b) that the deceased intended to keep everything else the same as under the 1998 will, including the devise to the plaintiff of his entire farm, and (c)

that the deceased still wanted his house, lands, stock and entitlements to go to the plaintiff, who had been working these lands for a very long time.

Position of the parties Position of the executrix

10. The executrix was sued in that capacity and accepts that she was correctly named as a defendant in the proceedings. She maintains an entitlement to her costs.

11. The executrix also accepts that as the plaintiff was entirely successful in the proceedings within the meaning of section 169(1) of the Legal Services Regulation Act 2015 (“the 2015 Act”), he should be presumptively entitled to his costs.

12. As regards the question of whether the costs of the executrix and the successful plaintiff ought to come from either the gift to the plaintiff or the residue of the estate, or ought, on the other hand, be funded by the Roberts defendants personally, the executrix urges for the latter approach.

13. The executrix therefore maintains an entitlement to her costs and to the plaintiff’s costs as against the unsuccessful Roberts defendants for insisting on a particular construction of the Will, particularly when the outcome of the litigation ought to have been clear to the parties from an early point in time. The executrix refers to a meeting in the Seven Oaks Hotel on 7 January 2020, at which meeting Victor Clarke addressed and explained the position of Clarke Jeffers Solicitors to the Roberts defendants, PJ Roberts, Martin Roberts and Gretta Roberts. This meeting is referred to at paras 25 and 44 of my module 2 judgment. At para 25 of my module 2 judgment, I held that the matters discussed at that meeting related only to the understandings or opinions of those present as to the deceased's intention in making the Will and were inadmissible, whether under s. 90 or otherwise. However, this does not necessarily mean that the evidence as to what was discussed at that meeting is inadmissible for the purposes of exercising this court's discretion as to costs.

14. The executrix argues that the Roberts defendants had actual knowledge of the testator's intention and instruction. Despite this knowledge, they sought to take advantage of an infelicity in the drafting of the Will and proposed an interpretation which was contrary to the explanation advanced by the solicitor who had made the Will and was entirely for their own benefit.

15. The unsuccessful Roberts defendants persisted in their proceedings in the absence of any cogent probative evidence (either by way of direct evidence of the intention of the testator or by way of documentary evidence) to support their interpretation.

16. The executrix submits that there were no reasonable grounds for opposing the plaintiff's claim and that the Roberts defendants did not conduct the proceedings bona fide but rather on a purely speculative basis.

17. The executrix argues that it would be wholly unjust for the Roberts defendants to be indemnified from the estate at the expense of the plaintiff who has successfully established his entitlement or at the expense of the non-participating residuary legatees who reasonably chose not to oppose the claim.

18. The principle in Vella v. Morelli [1968] IR 11 and Elliott v. Stamp [2008] 3 IR 387, that the costs of the litigation will be met from the estate where a case is a proper one for investigation and the litigation is conducted bona fide, does not apply where, in substance, the proceedings are adversarial in nature as between rival sets of beneficiaries in which case the litigation is more properly characterised as a "lis inter partes". In such cases, the general rule is that the losing party shall pay the costs of the successful party.

19. Even if there were to be no order as to costs in respect of the Roberts defendant beneficiaries, an order for costs in favour of the executrix and the plaintiff to be paid out of the residue of the estate will in all likelihood fully deplete the residue. This would effect a clear injustice to the nonparticipating residuary legatees. There may also be an injustice to the plaintiff who was the successful party, in that property devised to him may have to be sold to make up any shortfall in the costs award after depletion of the residue. This position will apply a fortiori if the court were to award costs to either the withdrawing Roberts defendants or the remaining Roberts defendants out of the residue.

20. The same position would apply were the court to award the costs of the executrix and the plaintiff from the estate of the deceased but charged against specific assets i.e., charged against the benefit that the Roberts beneficiaries are due to take under the Will. This is because the benefits due to the Roberts beneficiaries are unlikely to be sufficient to discharge such order for costs.

21. The executrix urges that there should be no distinction as between the five Roberts beneficiaries who initially opposed the plaintiff's claim. The Roberts beneficiaries opposed the plaintiff's claim collectively in their defence and must be liable for the consequences jointly and personally, particularly given that all the Roberts beneficiaries rejected the without prejudice proposal made by the plaintiff in November 2024.

22. The executrix made her position on costs clear at an early point in time. Her Defence pleaded that it should not be assumed that the costs of the entire action would be borne by the estate.1 This would be to materially penalise the non-participating residuary legatees who had chosen not to oppose the plaintiff's claim.

Position of the plaintiff

A similar plea was made by the plaintiff in his Statement of Claim.

23. The plaintiff argues that the starting point for the court must be that the plaintiff was entirely successful and that costs must follow the event unless the justice of the case would be better served by another order. The onus is on the unsuccessful Roberts defendants to satisfy the court that such other order is appropriate.

24. It was entirely obvious prior to the commencement of the proceedings that the evidence of William Clarke in relation to the testator's intention and instructions in drafting his Will, would, in all likelihood, be dispositive of the action in favour of the plaintiff.

25. The plaintiff had specifically pleaded in his Statement of Claim, details of the extrinsic evidence which William Clarke would give and did in fact give. All of the Roberts defendants fully denied this account in their defence.

26. The Roberts defendants acted unreasonably in determining to challenge the evidence of William Clarke in a manner which inappropriately impugned his professional integrity.

27. The evidence of the remaining Roberts defendants did not even come close to substantiating their assertion that specific instructions had been given by the deceased that he wished to leave the land in dispute "in bits and pieces".

28. The Roberts defendants did not act in a genuine but misguided belief as to the meaning of the words in the Will or as to the deceased's intention or instructions. Rather they sought for their own personal benefit to seize upon an infelicity in the drafting of the Will in an attempt to claim the lands which had not been bequeathed to them. They further maintained that in the event that an ambiguity arose in the interpretation of the Will that the plaintiff's gift would thereby fail for uncertainty and fall into residue.

29. The Roberts defendants ignored the repeated invitations of the court to attempt to agree matters in a manner that would not disproportionately impact the value of the estate. They also chose to ignore the Calderbank offer of the plaintiff.

30. Costs serve as an essential tool to incentivise efficient dispute resolution. Estates and families should not be destroyed because of a perception that in any construction suit every party has a "free run" and the estate will pick up the tab. This is an approach to probate litigation which it should be the policy and practice of the courts to discourage. Rather courts should encourage parties to act reasonably, to follow good advice and to consider settlement.

31. The plaintiff seeks an order pursuant to section 169(1) that the Roberts defendants pay his costs of the proceedings on the standard basis. The plaintiff thus seeks to be indemnified by the Roberts defendants personally rather than out of the estate. The plaintiff argues that the court's findings and the inter partes nature of the dispute warrant protecting the estate from diminution by the unsuccessful residuary beneficiaries’ litigation stance.

32. The plaintiff submits that, consistent with the court’s discretionary flexibility under section 168(2) it should allocate costs on both a party specific and temporal basis. Therefore, up to the date upon which their solicitors were granted liberty to come off record for Sean, Gretta and Martin Roberts and to the date that PJ and Maurice Roberts ceased all participation, all of the Roberts defendants should be jointly and severally liable for the costs of the plaintiff and the executrix. The plaintiff puts this point in time as being 29 January 2025. Thereafter, during module 2, the plaintiff seeks an order for costs solely as against Sean, Gretta and Martin Roberts on a joint and several basis. The plaintiff points out that section 168(2)(b)-(c) expressly contemplates orders for costs up until a specified date, which is an appropriate frame of analysis given the procedural history of this case.

33. The plaintiff argues that any invitation by the Roberts defendants to shift their costs onto the estate (or to settle the estate with the costs of either the plaintiff or the executrix) should be rejected. This would in substance dilute the successful beneficiaries’ award and unjustly diminish the non-participating residuary beneficiaries legacies, contrary to the inter partes statutory default position and the court’s focus in section 169 on the reasonableness of the issues pursued and the parties’ conduct. The court’s findings make it plain that there is no equitable basis to socialise the losing residuary beneficiaries’ costs across the estate. If any parties’ costs are paid out of the estate then, the non-participating residuary beneficiaries will be deprived of all or a material part of their benefit despite having reasonably chosen not to oppose the plaintiff's claim.

Further the plaintiff's devise would be diminished by costs incurred due to the Roberts defendants’ unreasonable conduct. The plaintiff maintains that the just and orthodox outcome is a personal adverse costs order against the Roberts defendants, segmented by date or step to reflect withdrawals and post-module conduct, with protection for the estate and indemnity for the reasonable costs of the plaintiff and the executrix. The Roberts defendants knew from January 2020 that they would fail. They had no evidence to support their position. They rejected a reasonable settlement offer. They proceeded to trial for their own benefit and in pursuit of their own agenda presenting evidence the court found "inherently implausible" and "purely speculative". Justice requires that the Roberts defendants, not the estate or the innocent non-participating beneficiaries, bear the costs of their own unreasonable litigation.

Position of the withdrawing Roberts defendants

34. The withdrawing Roberts defendants object to the collective characterisation of the 2nd to 6th defendants as the Roberts defendants. They argue that that characterisation obscures the materially different procedural positions adopted by individual defendants, the divergences in legal representation following mediation and the differing conduct relevant to the court’s assessment under sections 168-169 of the 2015 Act.

35. Initially, all of the Roberts defendants were jointly represented. Following the mediation, which occurred after the determination of module 1, the withdrawing Roberts defendants accepted the court's determination and declined to participate further in module 2. The remaining Roberts defendants, however, elected to contest module 2 and instructed alternative solicitors.

36. The withdrawing Roberts defendants submitted that although the validity of the Will was not in dispute, the proceedings were necessary to resolve uncertainty as to the testator's intention so that the estate could be administered correctly. They maintain that the Roberts defendants did not cause the ambiguity in the Will. What caused the ambiguity in the Will was, they submit, the acknowledged error of Clarke Jeffers to draw up the Will in accordance with the deceased's instructions.

37. The withdrawing Roberts defendants vigorously maintain that reliance on the meeting in the Seven Oaks Hotel on 7 January 2020 is wholly misconceived and unsustainable. At that point in time none of the Roberts defendants were legally represented. The meeting was informal in nature and did not, and could not, purport to resolve the construction issues arising under the

Will. Knowledge of William Clarke's recollection did not equate to the inevitability of admissibility or to the acceptance of his evidence under s. 90.

38. The jurisprudence governing s. 90 evidence is nuanced and fact specific and the court itself deemed it appropriate to hear evidence on a de bene esse basis. In no sense can the meeting be regarded as having provided a dispositive resolution of the matters arising.

39. The withdrawing Roberts defendants submit that the Calderbank offer sent was received by all of the Roberts defendants shortly after the unsuccessful mediation. After that, numerous applications to adjourn the matter were made and granted by the court to facilitate resolution of the differences between the parties and to allow combined instruction to be given by all of the Roberts defendants in respect of the Calderbank offer. Unfortunately, both of these attempts failed and Farrell McElwee were ultimately granted liberty to come off record. For this reason it was not possible to respond to the Calderbank letter, which had been addressed to all of the defendants in the absence of a consensus between them.

40. The withdrawing Roberts defendants also argue for a party specific and temporally limited segmentation and differentiated costs orders in accordance with section 168(2). They submit that their cost exposure should be confined to the period during which they participated and that they should not be treated as liable (whether jointly, severally, or otherwise) for costs incurred after their withdrawal. For this reason, they maintain that any adverse consequence arising from module 2 should fall, if at all, only on those who actively pursued that module. This approach, it is said, reflects causation, proportionality and the statutory framework.

41. The withdrawing Roberts defendants accept that the plaintiff is entitled to his reasonable costs of module 1 and module 2, incurred in the pursuit of necessary construction proceedings. They also assert that the withdrawing Roberts defendants are entitled to their costs up to the delivery of the module 1 judgment. Their conduct was reasonable and proportionate and their cost exposure should be confined accordingly.

42. The withdrawing Roberts defendants submit that there is no injustice in directing that the reasonable costs of the plaintiff and their own reasonable costs should be borne by the estate. They maintain that the proceedings were necessary and were pursued in good faith to enable the proper administration of the Will. To penalise the withdrawing Roberts defendants in costs would be inconsistent with both the statutory framework and the equitable principles governing construction.

43. The withdrawing Roberts defendants accept that the costs of the executrix ought in general to be awarded out of the estate. However, they maintain that certain costs incurred by the executrix, including participation in the mediation which did not advance resolution were unnecessary and should not be borne by the estate.

44. The withdrawing Roberts defendants do not specify which portion of the estate ought to satisfy these orders for costs on the part of both the plaintiff and the withdrawing Roberts defendants.

45. The withdrawing Roberts defendants accept that the interpretation for which they initially contended was not accepted by the court. However, that finding was made only after the admission of s. 90 evidence. That finding, therefore, cannot be determinative of whether the proceedings had been reasonably pursued up to the conclusion of module 1. Furthermore, the court made no adverse findings as to the credibility or plausibility of the withdrawing Roberts defendants. The relevant question under section 169 is not whether a party ultimately failed, but whether it was reasonable for that party to pursue or contest the issues at the time they were pursued. Given that the ambiguity in the Will was judicially confirmed the pursuit of clarification at least to the point of the conclusion of module 1 cannot be characterised as unreasonable.

46. The withdrawing Roberts defendants acknowledge that in this court's module 1 judgment I rejected their argument that the Will unambiguously devised the Myshall and the Raheenleigh lands to them. However, I nonetheless stated that, as a piece of English, the Will was more consistent with the interpretation contended for by the Roberts defendants than with that contended for by the plaintiff (albeit that having regard to the overall scheme of the Will an ambiguity persisted). The withdrawing Roberts defendants therefore submit that the plaintiff was not entirely successful at module 1, because the interpretation for which he contended, namely that the Will was unambiguous and devised all of the deceased's lands to him, was rejected by the court. The question they say is not who was successful but whether module 1 raised a legitimate issue to be decided.

Position of the remaining Roberts defendants

47. The remaining Roberts defendants argue that the court should instead exercise its discretion to award all parties their costs out of the estate.

48. The remaining Roberts defendants acknowledge that the ordinary rule as set out in section 169(1) is that a party who was entirely successful in civil proceedings is entitled to an award of costs against the unsuccessful party unless the court orders otherwise. They submit that in considering whether it should order otherwise the court has regard to two broad categories of considerations: (a) the particular nature and circumstances of the case and (b) the conduct of the parties.

49. As regards the particular nature and circumstances of the case, the remaining Roberts defendants maintain that the proceedings related to the meaning, effect and interpretation of clause 2 of the Will and the intention of the deceased. Such an action falls within the definition of administration proceedings or construction suits which it is submitted ought to be treated differently to other kinds of civil proceedings. This, it is stated, remains relevant to the exercise of the court's discretion in accordance with the 2015 Act.

50. The remaining Roberts defendants submit that the proceedings arose because of the way in which the Will was framed and were simply aimed at discovering the meaning of the Will, which was unclear. The proceedings were therefore taken for the benefit of the estate. Consequently, the proceedings fall within the second category of proceedings identified by Herbert J. in O'Connor v. Markey [2007] 2 IR 194 namely the proceedings were in substance brought about by reason of a difficulty of construction or administration as a result of which the application was necessary for the administration of the estate. In such circumstances the costs of all parties are necessarily incurred for the benefit of the estate as a whole.

51. The remaining Roberts defendants assert that the present case is entirely distinguishable from O'Connell v. O'Connell [2023] IEHC 215. They submit that O'Connell v. O'Connell was acknowledged by Butler J. as involving very little argument about the actual construction of the will. Rather, it was centred on whether a particular category of assets acquired subsequent to the making of the will should be characterised as falling within a category mentioned in the will on the basis of the presumed intention of the deceased. By contrast, the within proceedings involved a pure construction suit focusing on the interpretation of the Will.

52. The remaining Roberts defendants point to the fact that the only other reported decision on the question of costs in a construction suit since the commencement of the Succession Act 1965 is Shannon v. Shannon [2019] IEHC 604 in which MacGrath J. made no order as to costs. They argue that Shannon v. Shannon can be differentiated because in that case the court rejected the argument that the will was ambiguous or that extrinsic evidence was necessary. By contrast in the present case the court found that the Will, interpreted within its own four corners was ambiguous and that it was necessary to admit extrinsic evidence. This, it is said, demonstrates that the position adopted by the remaining Roberts defendants at module 1 was entirely reasonable.

53. As regards module 2 the remaining Roberts defendants observe that in its module 1 judgment the court, having agreed to receive extrinsic evidence, left over the question of the admissibility of any such evidence until module 2. Then, at module 2 the court heard all evidence on a de bene esse basis only, determining admissibility in the context of its ultimate judgment. In such circumstances, it was reasonable for the remaining Roberts defendants to participate in the second module. It was also necessary for the court to hear the evidence of Clarke Jeffers.

54. Indeed, it was only after such evidence was heard that the plaintiff's interpretation of the Will could be accepted. The remaining Roberts defendants admit that the proceedings arose not because of any fault or blame on the part of themselves, but as a direct result of the manner in which the deceased's Will was drafted by his solicitor.

55. They submit that where the construction suit is caused by reason of the negligence of the third-party solicitor it is reasonable to award costs from the estate which can then be recouped in professional negligence proceedings. In this respect the remaining Roberts defendants note that the executrix has already commenced proceedings as against Clarke Jeffers in this regard.

56. Subsections 169(1)(a)-(g) are directed towards the conduct of the proceedings and set out a non-exhaustive list of factors to be taken into account, the remaining Roberts defendants submit that given "the particular nature and circumstances" of the proceedings and matters of "conduct", the court should not make a default order of costs against the remaining Roberts defendants and should instead exercise its discretion to award all parties their costs out of the estate.

57. As regards the conduct of the parties, the remaining Roberts defendants submit that they were entitled to contest and ventilate their arguments before the court. It is argued that they did not overstate their position or fabricate evidence. Nor did they advance a vexatious or frivolous claim. Court time was not wasted on fanciful or illogical issues. They did not act in a vindictive manner to waste the assets in legal proceedings. They did not engineer or manufacture a dispute or act in a mendacious, manipulative or vindictive manner. They maintain that there is nothing in the conduct of the remaining Roberts defendants such that justice would require an order for costs to be made against them. Rather the Will contained an ambiguity, which was not of their making,

which required the court's assistance to interpret. They also submit that the remaining Roberts defendants agreed to participate in the mediation process which was unfortunately unsuccessful.

58. In light of the nature of the proceedings they ought not to be punished for refusing to accept the terms of the Calderbank offer.

59. The remaining Roberts defendants thus argue that the court should depart from the ordinary rule that costs follow the event, having regard to the particular nature of the proceedings (a construction suit) and the conduct of the parties outlined above. They submit that the court ought to award all parties their costs from the estate. Although this may reduce the value of the inheritance conferred upon the successful party, this ought not dissuade the court because there was a legitimate dispute as to the construction of the Will. There was, at all times, a reasonable basis for the approach of the remaining Roberts defendants to the litigation and they conducted themselves in a reasonable and bona fide manner throughout. The instant case, it is suggested, is a classic situation in which the remaining Roberts defendants should not be penalised on costs.

60. Therefore, the costs of the remaining Roberts defendants should be paid out of the estate in accordance with section 168(1)(b), which provides that where proceedings before the court concern the estate of a deceased individual, the court may order that the costs of or incidental to the proceedings of one or more of the parties be paid out of the property of the estate.

61. The remaining Roberts defendants submit that this provision is a restatement of the established principle that a court may in appropriate circumstances in an administration suit direct that costs be paid from the estate.

62. Costs will then be paid in accordance with section 46(3) of the 1965 Act such that such costs would be first discharged from the portion of the estate that falls into residue and if there are insufficient assets in that portion to meet same, the executrix should then have recourse to the assets specifically devised under the will.

Summary of the respective positions of the parties

63. As can be seen from the above, there are a number of discrete issues arising for determination as regards the claim made by each party for their costs.

64. Neither the withdrawing Roberts defendants nor the remaining Roberts defendants seriously disputed the prima facie entitlement of both the plaintiff and the executrix to their costs. This may, however, be largely attributable to the fact that both the withdrawing Roberts defendants and the remaining Roberts defendants adopted the position that all parties should get their costs from the estate.

65. Although it is agreed that both the executrix and the plaintiff are entitled to their costs, there is a significant dispute as to whether those costs ought to be paid out of the estate, or from the residue, gifted to the Roberts defendants or in the alternative personally against the Roberts defendants. Naturally, payment of the costs of all parties out of the estate will reduce commensurately the amount of disposable assets for the purposes of the residue, unless same is charged on the gifts made to the Roberts defendants only under the Will and not on the gifts of the other residuary legatees who did not participate in the proceedings or should the funds in residue be insufficient to satisfy the award of all costs, as against the gift to the plaintiff.

66. In addition, there is a significant issue as to whether either the withdrawing Roberts defendants or the remaining Roberts defendants should be awarded their costs. No particular argument was made as regards which portion of the estate these Roberts defendants’ costs, if awarded, should come from. Again, an award of costs to the Roberts defendants to be paid from their own portion of the estate would be largely meaningless, at least to the extent that such portion could satisfy their costs. As such, the issue is also whether the Roberts defendants should be awarded their costs from the residue of the estate generally, which would be to the detriment of the non-participating residuary legatees and/or whether such costs should, if the residue is depleted, also be awarded from the gift to the successful plaintiff.

67. In order to deal with these issues, I will first look at the statutory costs principles under the 2015 Act and then at the judgment of Butler J. in O'Connell v. O'Connell [2023] IEHC 215, which guides this court on costs issues in probate actions, specifically.

Costs principles under 2015 Act

68. Costs are governed by section 168 and section 169 of the 2015 Act and Order 99 of the Superior Court Rules as amended (“O. 99”), as interpreted and applied by the principal judicial authorities, in particular, Chubb European Group SE v. Health Insurance Authority [2022] 2 IR 734, Higgins v. Irish Aviation Authority [2020] IECA 277;[2022] IESC 45 (“Higgins”), Word Prefect Translation Services v. Minister for Public Expenditure [2023] IECA 189 (“Word Perfect”)

and ESB v. Good [2025] IESC 40. I summarise these key principles below:

I. In considering the awarding of costs of any action the court should “have regard” to the provisions of section 169(1) (O.99, r.3 (1)).

II. The general discretion of the court in connection with the ordering of costs is preserved (section 168(1) and O.99, r.2 (1)).

III. Pursuant to section 169 (1), the first issue to consider is whether either party has been “entirely successful” in the proceedings or whether, on the other hand, each party has been “partially successful”. (section 169 (1) and section 168 (2) (d)).

IV. This in turn determines where the burden lies in deciding how costs should be allocated.

In a case where the party seeking costs has been “entirely successful”, the party so succeeding “is entitled” to an award of costs against the unsuccessful party unless the court considered that there is a reason not to order them

V. This prima facie entitlement to costs is limited to a party who is “entirely successful” in the proceedings (section 169 (1)).

VI. In Higgins, Murray J. stated that in considering whether one party or another has been “entirely successful”, the court should take the pragmatic approach identified by Simons

J. in Náisiúnta Leictreach Contraitheoir Eireann v. The Labour Court [2020] IEHC 342 (“Naisiunta Leictreach”), and look beyond the overall result of the case and “consider whether the proceedings involved separate and distinct issues” which might be characterised as individual “events”.

VII. Where a party is “entirely successful” all costs follow unless the court exercises its discretion to “order otherwise” having regard to the factors enumerated in section 169 (1)(a)-(g). As noted by Simons J. in Ryanair v. An Taoiseach [2020] IEHC 673, the criteria enumerated at subparagraphs (a) to (g) of subsection (1) “appear to be directed principally to … the conduct of the proceedings.”

VIII. Thus, in determining whether to “order otherwise” and decline to award an entirely successful party their costs, the court should “hav[e] regard” to the “particular nature and circumstances of the case” and to the conduct of the proceedings by the parties (section 169 (1)).

IX. The matters to which the court shall have regard in this regard include the conduct of the parties before and during the proceedings and the manner in which the parties conducted all or part of their case (section 169 (1)(a) and (c)). The court will further have regard to whether a successful party exaggerated his or her claim (section 169 (1)

(d)). The court will also have regard to payments into court, settlement offers and mediation (section 169(1) (e-g)). In Higgins, Murray J. noted where an appeal is brought only against the assessment of quantum of damages by the High Court, the facility for making offers of the kind referred to in section 169(1)(f) and Order 99 r.3(2) can assume decisive importance in determining what order for costs is just. The court will also have regard to whether it was reasonable for a party to raise, pursue or contest one or more issues (section 169 (b)). The wording here is important. It highlights the fact that the enquiry is not as to whether the issue or issues in question have been lost or won by one party or another. Rather, the enquiry is as to whether it was “reasonable” for the relevant party to have raised, pursued or contested the issue or issues in question.

X. The use of the word “including” at section 169 (1) makes it clear that the factors listed are illustrative, rather than exhaustive. The court retains overall discretion and may also have regard to other matters of relevance to the particular nature and circumstances of the case or to the conduct of the proceedings that it considers of relevance.

XI. In the exercise of its discretion, the court may order a party to pay a portion of a party's costs, costs from or until a specified date, or costs of particular steps in the proceedings (section 168 (2)(a-c)).

XII. In Higgins, Murray J. set out the four questions to be answered by the court when applying sections 168 and 169 and O.99, r.3(1) RSC: (a) Has either party to the proceedings been ‘entirely successful’ in the case as that phrase is used in s.169(1)?;

(b) If so, is there any reason why, having regard to the matters specified in s.169(1)(a)

– (g), all of the costs should not be ordered in favour of that party?; (c) If neither party has been ‘entirely successful’ have one or more parties been ‘partially successful’ within the meaning of s.168(2)?; (d) If one or more parties have been ‘partially successful’ and having regard to the factors outlined in s.169(1)(a)-(g) should some of the costs be ordered in favour of the party or parties that were ‘partially successful’ and if so, what should those costs be?

Costs principles in probate litigation: O'Connell v O'Connell

69. In O'Connell v. O'Connell Butler J. held that costs in probate actions/administration suits/construction suits, come within the definition of “civil proceedings” within the meaning of the 2015 Act and that the costs thereof are governed by sections 168 and 169.

70. The starting point for the court's consideration as to how the discretion under the statutory scheme should be exercised must be the principle contained in section 169(1) that an entirely successful party is entitled to an order for costs against the unsuccessful party.

71. As in O'Connell v. O'Connell there is a significant difference between the parties as to the relevance and applicability of sections.168 and 169.

72. The application for costs made by the plaintiff is based on the straightforward application of the principle that as he was “entirely successful”, costs follow the event under section 169. He argues that the burden rests on the Roberts defendants, as the unsuccessful party, to demonstrate by reference to the criteria in section 169(1) why an order for costs should not be made against them.

73. The withdrawing Roberts defendants note that at module 1, both they and the plaintiff contended that the Will was unambiguous. Each effectively contended that the unambiguous interpretation bequeathed the Myshall and Raheenleigh lands to them. Ultimately, the court held with neither party on this issue and determined that the Will was not clear and unambiguous. The withdrawing Roberts defendants therefore maintain that the plaintiff was not “entirely successful” in module 1.

74. I have difficulty with this argument. In the first place, both the plaintiff and the Roberts defendants (collectively) contended for an unambiguous interpretation which favoured them. Insofar as the plaintiff lost this argument, so commensurately did the Roberts defendants. In truth neither side was successful at all (either entirely or partially) on this issue. To that extent, the loss of each respective party on this issue cancels out the other.

75. It seems to me that in substance, module 1 was concerned with the question of whether the Will was clear and unambiguous within its own four corners or whether, in the alternative, extrinsic evidence should be admitted. The plaintiff contended that if the court did not agree that that the Will was unambiguous and favoured his interpretation, then extrinsic evidence should be admitted in particular that of William Clarke. The Roberts defendants, on the other hand, who also contended that the Will was ambiguous, resisted the admission of extrinsic evidence.

76. This critical issue, whether or not extrinsic evidence should be admitted was in reality “the event” at module 1. On it, the plaintiff prevailed. He was, if not “entirely successful”, substantially successful.

77. Even if the withdrawing Roberts defendants are correct and no party was “entirely successful” at module 1 (such that the plaintiff is not statutorily entitled to his costs thereof), there can clearly be no doubt that he was “entirely successful” at module 2.

78. Moreover, if one zooms out and takes the proceedings as a whole, the single event in the proceedings was whether or not the entirety of the deceased's lands fell to be passed to the plaintiff or whether a portion thereof fell into the residue of the deceased's estate. The plaintiff succeeded entirely on this overall event.

79. Thus analysed, the unsuccessful parties, at both modules, are undoubtedly the Roberts defendants, the executrix having remained neutral on the substantive issue. As such the onus of persuading the court not to award the other party’s costs of both modules as against them, lies on the unsuccessful Roberts defendants.

Argument 1: The particular nature and circumstances of the case

80. In arguing that the court ought to exercise its discretion not to award costs against them, the Roberts defendants, in particular, the remaining Roberts defendants rely on two points as justifying departure from the “costs follow” rule. First, “the particular nature and circumstances of the case” and second, “the conduct of the proceedings by the parties”.

81. Insofar as concerns, “the particular nature and circumstances of the case”, the remaining Roberts defendants emphasise that in O'Connell v. O'Connell, Butler J. held that notwithstanding that the costs application fell to be dealt with within the framework of the 2015 Act, the jurisprudence predating the Act remained of relevance insofar as the approaches traditionally taken by the courts towards the issue of costs in similar cases illustrate attempts to do justice between the parties. Consequently that jurisprudence offers important guidance to the court as to what might be just and appropriate in similar circumstances.

82. It is first necessary to note that after making this observation, Butler J. observed that the pre-2015 jurisprudence can no longer be regarded as creating rules, the application of which would produce automatic outcomes depriving the court of the statutory jurisdiction and discretion conferred upon it in relation to costs by the 2015 Act.

83. The principle in Vella v. Morelli, that the costs of all parties should be paid from the estate (unless the litigation is conducted unreasonably or not in good faith) is based on public policy considerations applicable to the validity of testamentary instruments. However, in O'Connell v. O’Connell, Butler J. held that the same public policy considerations do not apply to an administration suit or a construction suit where there is no question as to the validity of the Will and the only issue is the extent to which the respective beneficiaries should inherit. That describes the present proceedings.

84. It should also be noted that, in addition to holding that Vella v. Morelli did not apply to construction suits where the validity of the will was not in issue, Butler J. also eschewed any approach which sought to invoke as a starting point for a decision on costs the placement of the proceedings within any specific category of litigation.

85. Butler J. expressly acknowledged that the pre-existing common law rules were undoubtedly intended to reflect the nature and circumstances of particular types of cases, namely probate cases. However, there was, she stated, a significant difference between categorising cases into a particular type to which rules are then applied and considering the nature and circumstances of each case individually in order to decide if the court should depart from statutorily designated rules. Butler J. held that the latter would be an impermissible approach because it would be to apply pre-existing judicial rules in a manner which undermined express statutory provisions of ostensible general application and subjected same to a specific but unexpressed exclusion.

86. The remaining Roberts defendants rely heavily on the trifold categorisation of cases set out by Kekewich J in Buckton v. Buckton [1907] 2 CH 406, Kekewich J divided cases concerning the construction of effective wills into three categories: the first of which is where the applicant is the trustee or executrix of a will or settlement who asks the court to construe the will for their own guidance, the second of which is where the application is not made by the trustee or executrix but by some of the beneficiaries but where the necessity for the application nonetheless arises due to a difficulty of construction or administration which would have justified an application by the trustees and thirdly cases where an application is made by a beneficiary raising a claim adverse to the other beneficiaries.

87. The remaining Roberts defendants argue these proceedings fall within the second category of cases in which a Kekewich J. took the view that the costs of all of the parties are necessarily incurred for the benefit of the estate. They rejected the proposition that the present proceedings fell within the third category of cases in which Kekewich J. regarded as adverse litigation to which the general rule that the unsuccessful party be ordered to pay costs should apply.

88. The reliance of the remaining Roberts defendants upon Buckton v. Buckton cannot avail them for two reasons. In the first place, Butler J. rejected the proposition that it is now appropriate to approach the question of costs by reference to such absolute rules of categorisation. In the second place, and more crucially, the proceedings in my view fall squarely within the third category of Buckton v. Buckton. The proceedings were, in substance “contentious litigation between beneficiaries” and a “hostile lis inter partes between two beneficiaries under the will” per Herbert J. in O'Connor v. Markey [2007] 2 IR 194.

89. In one sense it could be said that the proceedings, and in particular module 1, arose from the way in which the testator framed his Will. However, I do not accept that the language used by the testator, although ambiguous, necessarily propelled the parties into this litigation. As observed by Butler J. in O'Connell v. O’Connell, there are many cases in which testators might use language which is less than ideal and the extent to which this will result in litigation necessarily depends on the attitude taken by those potentially entitled to benefit under the will.

90. Insofar as concerns the reliance of the remaining Roberts defendants upon section 168(1)(b) once again one has only to look to O'Connell v. O'Connell to see that this argument is incorrect. In O'Connell v. O’Connell Butler J. held that section 168(1)(b) did no more than confer upon the court a discretion to order that the costs of all or any party to such litigation could be paid from the estate. This, however, did not fetter the court's discretion to award the costs in a manner that did justice between the parties.

91. The key point is that irrespective of whether this case is characterised as an administration suit or a construction suit, costs are governed by the 2015 Act and are in the discretion of the court.

92. In reality, this was always a dispute between the beneficiaries of the estate as regards their respective entitlements. On the other hand, I accept that this case is not precisely on all fours with O'Connell v. O'Connell, in which Butler J. noted that very little of the argument before her concerned the actual construction of the will. In contrast, module 1 of these proceedings did concern the construction of the Will and in particular the question of whether same could be said to be clear and unambiguous. This to my mind suggests that a reasonably nuanced approach to module 1 costs ought to be adopted, which I reflect below (see paras 105-109 re executrix’s module 1 costs and paras 111 to 112 re plaintiff’s module 1 costs).

93. Module 2, however, was the clear lis inter partes in which I say the plaintiff was “entirely successful”. In that respect, I can see no justification for departing from the usual rule that costs should follow the event

Argument 2: the conduct of the proceedings by the parties

94. The remaining Roberts defendants also rely upon “the conduct of the proceedings by the parties” as supporting departure from the usual rule that costs follow the event. I accept that the remaining Roberts defendants did not fabricate evidence or act in a vindictive, mendacious manner. Nor did they manipulate or engineer the proceedings. This, however, is an exceptionally low bar. Undoubtedly, there are other aspects of the conduct of the remaining Roberts defendants, particularly in persisting to module 2, which disincline the court to depart from the usual rule that costs follow the event.

95. In O'Connell v. O'Connell, Butler J., in commenting upon the judgment of Kearns J. in Elliott v. Stamp [2008] 3 IR 387 considered that a party who has continued litigation after the provision of information prior to trial, as a result of which it should have become apparent that they could not succeed had acted unreasonably such that they should not be awarded their costs. Butler J. noted that cases may arise in which it may be reasonable to commence and bring proceedings but in which a point may arrive, where, as result of disclosure, further pursuit of the claim could no longer be regarded as reasonable.

96. In the present case, I view the conduct and approach of the remaining Roberts defendants after this court’s module 1 judgment as unreasonable in the sense described.

97. The determination of the remaining Roberts defendants to continue the proceedings after this court’s module 1 judgment and notwithstanding the disclosure of the memorandum of William Clarke, in my view, represents conduct before and during the proceedings within the meaning of section 169(1)(a) which, far from encouraging me to depart from the usual order that costs follow the event, fortifies my conclusion that the “costs follow” rule is the appropriate approach for module 2.

98. Likewise, section 169(1)(b) which requires a court to consider whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings is also of relevance. Even if one accepts, for the sake of argument, that it was reasonable for the Roberts defendants collectively to initially raise the issue of the ambiguity in the Will, it was not reasonable for the remaining Roberts defendants to continue to contest it after the point in time just indicated.

99. It is also relevant to note that the position adopted by the remaining Roberts defendants was not only contrary to the evidence of William Clarke, who drafted the Will, it was also unsupported by any credible evidence. In this respect, I found in my module 2 judgment that the Roberts defendants had put forward no credible evidence to support their interpretation of the Will - either by way of testimony or documentary evidence. I found that their interpretation of the Will was purely speculative and "inherently implausible".

100. As regards section 169(1)(a) I was also unimpressed by the attempt of the remaining Roberts defendants to try and reopen the issue of the admissibility of the extrinsic evidence at module 2, which approach I did not believe was legitimate. This procedural stance also weighs against them for the purposes of section 169(1)(a)-(c).

101. None of this conduct is consistent with the need to protect small estates from being dissipated by the pursuit of proceedings which it ought to have been apparent could not succeed.

102. In O'Connell v. O'Connell, Butler J. also noted that offers made without prejudice save as to costs are also of relevance to probate proceedings. As in O'Connell v. O'Connell, it is clear in light of the outcome of the proceedings, that the offer made by the plaintiff to the Roberts defendants was undoubtedly fair. I agree with the submission of the plaintiff that, if notwithstanding such offers the court were to accede to an application that the costs of all parties must come from the estate unless the litigation is manifestly unreasonable or conducted in bad faith, this would give little incentive to parties in the position of the Roberts defendants to compromise.

103. For all of the above reasons, I take the view that the factors set out in section 169(1)

(a)-(c) and (f) fortify this court's conclusion that, in respect of module 2, the costs of all parties (including the executrix’s costs) must follow the event and ought to be discharged by the remaining Roberts defendants.

104. However, although it is a narrow judgment call, it was not unreasonable for the Roberts defendants collectively to have contested the proceedings to the point of judgment at module 1. I will reflect this in costs in the manner set out below.

Conclusions

The costs of the executrix

105. As noted by Butler J. in O'Connell v. O'Connell, an executrix is in a sui generis position in that having issued litigation to have an issue determined or, in the instant case, in progressing the construction suit when same could not be resolved, the executrix cannot be characterised as either a "successful" or a "unsuccessful" party, regardless of the outcome of the proceedings.

106. As noted by Butler J., there are strong policy reasons why an executrix who issues proceedings concerning an issue which has arisen in the course of an administration or, as in this instance, brings proceedings such as these forward in a neutral manner should, in general recover the costs of so doing from the estate. Failure to make such provision for an executrix’s cost would make people reluctant to undertake that role or might constrain an executrix in the proper exercise of their duties. Absent exceptional cases, in which it is inappropriate to do so in respect of which the court retains a discretion, the costs of the executrix should generally be awarded out of the estate.

107. I will therefore award the executrix her module 1 and 2 costs out of the estate but will adopt a party specific and temporally specific allocation of those costs, as I have power to do under section 168(2).

108. I am of the view that in light of the infelicity in the drafting thereof it would be unduly punitive to fix the Roberts defendants with the executrix’s module 1 costs. It was not unreasonable for the Roberts defendants to contest the proceedings and to bring them to the point of judgment at module 1.

109. Insofar as concerns module 1, although I am conscious that this may work some injustice upon the residuary legatees who chose not to participate in the proceedings, I order that the executrix’s costs are awarded from the estate and direct that those costs will be met 50% from the gift to the plaintiff and 50% from the residue of the estate.

110. The position is different as regards module 2, for the reasons I explain at paras 94-

103 above. Insofar as concerns module 2, I order that the costs of the executrix may be recovered from the remaining Roberts defendants charged on the gift to the remaining Roberts defendants due to be paid under the deceased's Will and that any shortfall ought to be made up personally by the remaining Roberts defendants on a joint and several basis.

Costs of the plaintiff

111. Notwithstanding that the plaintiff was substantially successful at module 1, in harmony with the decision just made, I will make no order as to the plaintiff's costs in respect of module 1 up to the date identified as the end of module 1 which is 29 th January 2025.

112. In respect of module 2, I order that the plaintiff's costs may be recovered from the remaining Roberts defendants. I order that these costs are charged on the gift to the remaining Roberts defendant due to be paid under the deceased's Will and that any shortfall ought to be made up personally by the remaining Roberts defendants on a joint and several basis.

Costs of the withdrawing Roberts

113. I order that the withdrawing Roberts defendants bear their own costs of module 1.

Although it was not necessarily unreasonable for the withdrawing Roberts defendants to make the case that they did, they did so primarily for their own benefit and consequently they should not be entitled to expect that the other beneficiaries will have to bear the costs of their doing so.

Costs of the remaining Roberts defendants

114. I have concluded that it was not unreasonable for the Roberts defendants to have maintained their position up to the time of this court’s module 1 judgment. I will therefore make no order as to costs as between the plaintiff and the remaining Roberts defendants in respect of module 1.

115. The position is entirely different as regards module 2. As the plaintiff points out, awarding the remaining Roberts defendants costs out of the estate would invert the usual rule. In addition, I am of the view that in rejecting, or in any event, in failing to accept, the plaintiff’s without prejudice save as to costs offer, the remaining Roberts defendants must necessarily be understood to have taken the risk of adverse costs orders in the litigation if they did not ultimately succeed in the claim.

116. I therefore order that the remaining Roberts personally will be liable for the module

2 costs of the plaintiff and the executrix and that such costs will be charged on the gift to the remaining Roberts defendant due to be paid under the deceased's Will and that any shortfall ought to be made up personally by the remaining Roberts defendants on a joint and several basis.