Finlay Estate - Finlay v Finlay

[2010] NSWSC 1452

CITATION:	Finlay Estate – Finlay v Finlay [2010] NSWSC 1452
HEARING DATE(S):	6 December 2010
JUDGMENT DATE :	6 December 2010
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	6 December 2010
DECISION:	Plaintiff to pay own costs; Defendant’s costs out of estate.
CATCHWORDS:	SUCCESSION – PROBATE – COSTS – Plaintiff seeks revocation of grant of probate to Defendant – later consents to dismissal of claim – whether Plaintiff should have costs out of estate or pay Defendant’s costs – no question of principle.
CATEGORY:	Principal judgment
CASES CITED:	Spiers v English [1907] P 122
PARTIES:	Paul Stephen Finlay (Plaintiff) Stephen George Finlay (Defendant)
FILE NUMBER(S):	SC 2009/320939
COUNSEL:	G. Waugh (Plaintiff) R.W. Wilson (Defendant)
SOLICITORS:	Dowson Turco (Plaintiff) PricewaterhouseCoopers (Defendant)

2009/320939 Finlay Estate – Finlay v Finlay

JUDGMENT – Ex tempore

6 December , 2010

Introduction

1 The Plaintiff commenced proceedings seeking revocation of the grant of probate of a will to the Defendant. The Plaintiff later consented to the dismissal of his claim. The Plaintiff had challenged the grant of probate on the ground that the deceased did not know and approve of the contents of her will.

2 The issue now is as to the costs of the proceedings. The Plaintiff claims his costs of the proceedings out of the estate. Alternatively, he says that each party should be left to bear its or his own costs, the Defendant's costs coming out of the estate on the usual indemnity basis. The Defendant, on the other hand, seeks an order that the Plaintiff pay the Defendant's costs.

3 The uncontroverted facts are that the will was executed by the deceased within twenty-four hours of her death, at a time when she was gravely ill. Further, the will is somewhat complicated. It is some twenty-seven pages in length. The affidavit evidence shows that it would have been extremely difficult for a person in the state of health of the deceased to have comprehended the full ramifications of the technicalities in the will.

4 I take into account that the major provisions of the will may have been clear enough to the deceased, and the mechanics of the implementation of the instructions may have been understood only in the vaguest way, but they were not the most material aspect of the disposition of her estate.

5 The other aspect of the matter which requires consideration is that the Defendant is a substantial beneficiary under the will and arranged for solicitors to attend the deceased to take instructions and see to the execution of the will.

6 This is not a case in which the actions of the Defendant himself were the basis for exciting suspicion that the deceased had not known and approved of the contents of the will, so that I do not think it is appropriate that an order be made that the Plaintiff's costs be paid out of the estate.

7 I do accept, however, that, because the will was somewhat complicated and was executed by the deceased very close to her death, and made alterations to her previous will basically in the interests of the Defendant, those circumstances excited sufficient suspicion to justify an investigation by the Plaintiff of the circumstances of execution.

8 The affidavits of the solicitors who took instructions and who attended the deceased to see to execution of the will were sufficient to dispel the Plaintiff's suspicions, but, absent those explanations, in the first instance, it seems to me that the Plaintiff was justified in requiring some investigation to be made.

9 In those circumstances, the principles enunciated in a succession of cases, but especially in Spiers v English [1907] P 122, at 123, are applicable, so that, having found that the circumstances led reasonably to an investigation of the matter, I conclude that the Plaintiff should be left to bear his own costs of the litigation and the Defendant should have his costs out of the estate on the usual indemnity basis.

10 By consent, the proceedings are dismissed.

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