In the Estate of Colin William Brown (deceased) (No 2)

The applicant, David Alan Brown, sought costs in relation to proceedings concerning the estate of his uncle, Colin William Brown, who died on 29 December 2018. The proceedings involved the probate of a will dated 16 July 2014, which left a specific bequest to the applicant and the residue of the estate to Scouts SA. The applicant sought the admission to probate of a lost will made after 16 July 2014, an informal will prepared by the applicant and signed by the deceased, or a declaration that the deceased died intestate. The Court dismissed the application and admitted the 16 July 2014 will to probate. The applicant now seeks his costs of the proceedings to be paid from the estate on a solicitor/client basis, while the respondent opposes this application and seeks that the applicant pay the costs on the standard costs basis.

The central legal issue before the Court was whether the applicant, who was unsuccessful in his application to have a different will admitted to probate, should be entitled to have his costs paid from the estate. The applicant argued that the need for the proceedings lay at the feet of the deceased due to misrepresentations he made to the applicant during his lifetime. The Court considered the principles applicable to the award of costs in probate matters, which include the general rule that costs follow the event and two well-recognised exceptions. The Court noted that in probate matters, the usual order that costs follow the event may be departed from if the circumstances justify an investigation into the validity of a testamentary document, but not if a party persists in an unmeritorious action after discovering evidential material that largely dispels any reasonable concerns.

The Court found that the applicant was unsuccessful in his application to have a different will admitted to probate, and thus the usual order that costs follow the event should apply. The Court observed that there were no exceptional circumstances present in this case that would warrant departing from the ordinary rule. The Court held that the applicant should pay the respondent’s costs on the standard costs basis. The Court concluded that the respondent is entitled to the order it seeks in relation to costs, and accordingly, ordered that the applicant pay the respondent’s costs of the proceedings on the standard costs basis.