Coppola v Nobile (No 3) - [2012] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COPPOLA & ANOR v NOBILE & ANOR (NO 3)
[2012] SASC 145
Judgment of The Honourable Justice Stanley
27 August 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS - GENERAL PRINCIPLES
Plaintiffs sought order pronouncing force and validity of will executed in 1992 - alternatively, sought order pronouncing force and validity of will executed in 1972 - first defendant opposed making of both orders - the Court made an order pronouncing force and validity of the 1972 will - parties seek order for costs.
Held: Costs set off against each other and apportioned between the parties.
Supreme Court Civil Rules 2006 (SA) r 266, referred to.
Ponder v Burmeister [1909] SASR 62; Public Trustee v Hall [1937] SASR 252, applied.
Thomas & Anor v Nash (No 2) (2010) 107 SASR 338; Re Herbert Brothers (Deceased) (1990) 101 FLR 279; Estate of Plant (Deceased) [1926] P 139; Coppola & Anor v Nobile & Anor [2012] SASC 129, considered.

COPPOLA & ANOR v NOBILE & ANOR (NO 3)
[2012] SASC 145
Civil
STANLEY J:
Introduction

In this matter the plaintiffs sought an order pronouncing the force and validity of the will executed by the deceased testatrix on 2 June 1992. In the alternative, they sought an order pronouncing the force and validity of the will executed by the deceased testatrix on 18 April 1972.
The first defendant opposed the making of both orders sought by the plaintiffs. The second defendant put the plaintiffs to proof in relation to the 1992 will but otherwise admitted that if the 1992 will was not admitted to probate, then a grant of probate in solemn form should be made in respect of the 1972 will.
The Court made an order pronouncing the force and validity of the will executed by the testatrix on 18 April 1972. It was not satisfied that the 1992 will was validly made.
The Court was not prepared to pronounce in favour of the force and validity of the 1992 will because it was not satisfied that the deceased knew and approved of the terms of the will.
Each of the parties now seek an order for costs.
Relevant legal principles
In Ponder v Burmeister[1] Way CJ discussed the principles applicable to determining the appropriate costs order in a probate matter. They are:
·The general rule is that costs follow the event;
·Departure from the general rule is to be the exception, occurring only when there is adequate reason for such an order;
·Costs should be awarded from the estate where the testator’s conduct has been the cause of the litigation;
·There should be no order as to costs where the parties who failed in the litigation were reasonably led into the litigation by a bona fide belief in their case. They must have acted in good faith and must have had reasonable ground for disputing or upholding the will. This award should be made even…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] SASC 145
Decision Date: 27 August 2012

CaseChat Overview and Summary

The case of Coppola v Nobile (No 3) involved the plaintiffs, as executors of the estate of the deceased, seeking orders to confirm the validity of two wills: one dated 1992 and another dated 1972. The first defendant contested both wills, while the second defendant supported the 1972 will. The court was required to determine the validity of both wills and the appropriate allocation of costs between the parties. The central legal issue was whether the plaintiffs, as executors, were entitled to costs from the estate and whether the second defendant, who supported the 1972 will, was entitled to costs from the estate or the plaintiffs.

The court considered the principle that costs generally follow the event, but recognised exceptions where a party's conduct warranted an award of costs. The court found that the plaintiffs were not entitled to costs from the estate because there were circumstances of suspicion that negated the presumption of knowledge and approval of the wills. The court also determined that the second defendant was entitled to costs because she supported the successful claim regarding the validity of the 1972 will, and none of the exceptions to awarding costs applied to her. The court allocated costs based on the outcomes of the two "events" in the litigation: the validity of the 1992 will and the validity of the 1972 will. The first plaintiff was ordered to pay one-third of the first defendant's costs and two-thirds of the second defendant's costs. The estate was ordered to pay one-third of the second defendant's costs and the costs of the administrator pendente lite on an indemnity basis.

The court made clear that its approach to awarding costs in probate matters begins with whether a party's claim to costs falls within an established exception to the principle that costs follow the event. After determining these exceptions, the court exercises its discretion in relation to the question of costs, considering the conduct of the parties. The court found that the plaintiffs were not entitled to costs from the estate due to the circumstances of suspicion surrounding the wills. However, the second defendant was entitled to costs because she supported the successful claim regarding the validity of the 1972 will. The court ordered the first plaintiff to pay one-third of the first defendant's costs and two-thirds of the second defendant's costs, while the estate was to pay the remaining one-third of the second defendant's costs and the costs of the administrator pendente lite on an indemnity basis. The court also prohibited the plaintiffs from indemnifying themselves out of the estate for the costs of the action.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

6SCR 266 empowers the Court to set off costs orders against countervailing liabilities. I adopt the approach urged on the Court by the second defendant. Necessarily, in this case, this approach requires the Court to swing a broad axe. The evidence in relation to each will cannot be discretely segregated. Conclusion In considering the general justice of the case, I make the following orders:1.The first plaintiff pay one-third of the first defendant’s costs in the action. 2.The first plaintiff pay two-thirds of the second defendant’s costs of the action. 3.The estate pay one-third of the second defendant’s costs of the action. 4.The plaintiffs are not permitted to indemnify themselves out of the estate for the costs of the action.5.The estate pay the costs of the administrator pendente lite on an indemnity basis.

Ratio Decidendi

Legal Principle Established

Accordingly, the approach to be taken to an award of costs in a probate matter is to commence with a consideration of whether the claim of a particular party to costs falls within one of the established exceptions to the principle that costs follow the event. Once those matters have been determined, there is still a discretion reposed in the Court in relation to the question of costs. The party’s conduct of its case may be a matter relevant to the exercise of that discretion but that exercise only occurs after it has first been determined whether or not the case falls within one of the well established exceptions to the approach that costs should follow the event.[6][6] Re Herbert Brothers (Deceased) (1990) 101 FLR 279 at 305 – 307.Consideration I commence with consideration of the position of the plaintiffs, the executors of the deceased’s estate under the 1992 will. The position of Mr Scragg, as the second plaintiff, creates some difficulties. A personal representative who proves a will in solemn form of his own motion or because parties interested have put him to proof of the will, ordinarily, is entitled to costs out of the estate. All of the expenses of and incidental to proving a will are a charge on the estate and the personal representative has a right to take them without an order of the court.[7] An executor may be entitled to his fees arising from a challenge to capacity from the estate if the executor is prima facie justified in propounding the will. Where an executor must have known that he is attempting to obtain a grant to a document which cannot be supported, he should be liable in costs.[8] [7] Estate of Plant (Deceased) [1926] P 139 per Lord Hanworth MR at 146 – 147.[8] Ponder & Anor v Burmeister & Ors [1909] SASR 62 per Way CJ at 109. In this matter, notwithstanding the criticisms of Mr Scragg, I am satisfied that there is nothing in his conduct which would warrant an order for costs against him personally. On the other hand, he is entitled to an order in respect of the costs related to the 1972 will. However, the effect of the orders I propose to make in relation to the first plaintiff in relation to costs would be defeated if I was to make an order that Mr Scragg is entitled to costs out of the estate as the executor. In the circumstances I propose to adopt the approach urged on me by Mr Ower, counsel for the second defendant, and to treat Severina as the moving party. In this litigation there were two “events”: the validity of the 1992 will and the validity of the 1972 will. The defendants were successful on the validity of the 1992 will. The plaintiffs and the second defendant were successful on the issue of the validity of the 1972 will. None of the recognised exceptions apply to the second defendant. In these circumstances the second defendant is entitled to her costs. That leaves for decision the matter of who should pay her costs and the entitlement of the plaintiffs and the first defendant to costs. In this matter the Court found that there were circumstances of suspicion so that the presumption of knowledge and approval did not arise in the case of either the 1992 will or the 1972 will. Notwithstanding the presumption being displaced in relation to the 1972 will, the Court was nonetheless satisfied that, on the evidence, the deceased knew and approved the terms of the 1972 will. Accordingly, the Court pronounced for the force and validity of that will.