1) Makes no order as to the Plaintiff’s costs, to the intent that he bear his own costs of the proceedings.
2) Orders that the Plaintiff pay the Defendant’s costs, calculated on the indemnity basis, of the proceedings.
3) Orders that the Defendant’s costs be paid out of the share of the deceased’s estate that passes to the Plaintiff under the 2002 Will of the deceased.
Catchwords:
COSTS – Probate proceedings – Settlement before determination – Contested probate application in which Plaintiff propounded copy undated document, which uncontested, but untested, expert evidence concluded did not bear authentic signatures – Application for grant to the Defendant of 2002 Will sought by her in Cross-Claim – No dispute about validity of 2002 Will other than to whom grant should be made – Shortly before commencement of first hearing, Plaintiff propounds another Will said to have been made by the deceased in 2008 – Expert evidence of each party, which remains untested, concluded that the 2008 document did not bear authentic signatures – The Plaintiff, shortly before final hearing, agrees to administration being granted of 2002 Will to independent administrator – Only outstanding issue for determination is how the costs of the proceedings should be borne – Application by Plaintiff that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased – Defendant seeks order that the Plaintiff pay her costs calculated on the indemnity basis, with no order as to the Plaintiff’s costs, of the proceedings – Under terms of 2002 Will, the deceased’s residuary estate is divided equally between the parties.
[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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AGLC
De Bruyne v Welstead [2022] NSWSC 886
Case
[2022] NSWSC 886
Decision Date
CaseChat Overview and Summary
In the matter of De Bruyne v Welstead, the dispute centred around the validity of two separate wills purportedly made by the deceased. The Plaintiff, seeking to challenge the Defendant's contested probate application, initially presented an undated document, which was uncontested but untested. Expert evidence indicated that this document did not bear authentic signatures. The Defendant, however, sought a grant of probate for a 2002 will, which was uncontested but untested. There was no dispute regarding the validity of the 2002 will, only the question of who should be granted the probate.
The court was tasked with determining the costs associated with the proceedings, following the settlement of the probate dispute. The Plaintiff requested that his costs, calculated on the ordinary basis, be paid from the deceased's estate. In contrast, the Defendant sought an order that the Plaintiff pay her costs calculated on the indemnity basis, with no order as to the Plaintiff’s costs. The court had to weigh the respective applications and decide on the appropriate method of cost allocation.
The court deliberated on the conduct of both parties and the impact of their actions on the proceedings. It noted the Plaintiff's initial presentation of an undated document and subsequent introduction of a 2008 will, both of which were contested regarding the authenticity of the signatures. The court considered the Plaintiff's decision to settle the probate dispute by agreeing to the administration of the 2002 will by an independent administrator, which left only the issue of costs to be determined. The court held that the Plaintiff's actions, particularly the introduction of documents that were later found to be invalid, warranted the Defendant being compensated for the costs incurred due to these actions. Therefore, the court ordered that the Plaintiff pay the Defendant's costs on the indemnity basis, with no order as to the Plaintiff’s costs.
This decision highlights the importance of the conduct of parties in probate proceedings and the potential consequences for those who act in a manner that unnecessarily prolongs litigation. The court's ruling ensured that the party who was forced to contest invalid documents was fairly compensated for the costs incurred due to the other party's actions.