Cottrell v Miglic

In Cottrell v Miglic, the Court of Appeal of Victoria examined a complex web of disputes concerning wills, estate distribution, and trust property tracing. The case involved a mutual wills agreement between a husband and wife, whereby they left their estate to the survivor, with the residue going to their children. The husband passed away before the wife, and the wife had made several wills with varying bequests. The children of the husband contested the validity of the wills and the tracing of trust property within the estate.

The legal issues before the court included whether the husband and wife intended to be bound by the mutual wills agreement, and if so, whether the wife was entitled to deviate from it by making subsequent wills without the husband's consent. Additionally, the court had to determine if the applicants were entitled to trace trust property within the estate of the aunt who had inherited a portion of the residuary estate. The court also considered whether new claims raised on appeal, such as a claim for equitable compensation, could be entertained.

The Court of Appeal found that the judge was correct in his assessment that the husband and wife intended to be bound by the mutual wills agreement, based on the evidence of a meeting where they discussed their testamentary arrangements. The court rejected the tracing claim as there was no evidence to support that the aunt had mixed trust property with her own. Regarding the new claim for equitable compensation, the court held that it was not expedient in the interests of justice to allow it to be raised on appeal as it required consideration of factual issues and expert evidence. Lastly, the court upheld the judge's order for costs to be paid out of the estate, noting that the judge had appropriately considered the relevant factors.

The Court of Appeal granted leave to appeal on the costs order, finding that there was a real prospect of success given the exceptional circumstances and the specific nature of the costs order. The decision underscores the importance of clear testamentary intentions, the strict requirements for tracing trust property, and the limited circumstances under which new claims can be introduced on appeal.