Outcome: Appeal dismissed.
1 The Plaintiff had lodged a caveat against any grant of probate in respect of a deceased person’s estate. The Defendant sought a grant of probate based on a will. The Plaintiff issued a writ seeking a declaration that the will is invalid, and the deceased had died without a will. The Defendant applied for security of costs, which was allowed by the Assistant Registrar. The Plaintiff appealed against the Assistant Registrar’s decision to order security of costs against him.
2 The Plaintiff argued that he is not the “Plaintiff” responsible for starting the related contentious probate proceeding as he is merely a caveator and submitted that the Defendant, by having the burden to prove that the Will is valid, is substantively in the position of the “Plaintiff”.
3 According to r 855 of the Family Justice Rules 2014, where a caveator insists that the applicant proves the will in solemn form and wishes to cross-examine the witnesses, he will not be liable for costs. Beyond this, if a caveator is not satisfied and still challenges the will, he becomes the “mover” who is responsible for starting the contentious probate proceedings: at .
4 A caveat is a notice to the court not to proceed with the grant of probate until the caveat is addressed. Whether a person who begins involvement as a caveator is in the position of the plaintiff depends on what the substantive effect of his acts are and not merely the fact that he had lodged a caveat earlier: at .
5 Where the Plaintiff commences the contentious proceedings, he is the plaintiff for the purposes of r 459 of the Family Justice Rules 2014. As the Plaintiff is a foreigner and an order for security for costs will not stifle his ability to pursue the claim, the circumstances would lean in favour of ordering security for costs: at .The full text of the decision can be found here.
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