Jvancich v Kennedy (No 2)

The appeal concerned an application for provision from the estate of the deceased under the *Family Provision Act*. The applicant, Jvancich, had been awarded a legacy of $250,000 by the Master. However, on appeal by the executrix and beneficiary, Kennedy, this legacy was reduced to $60,000. The primary dispute on this further appeal related to the costs of the proceedings.

The court was required to determine whether the applicant was entitled to have their trial costs paid out of the notional estate of the deceased, and whether there was any basis for imposing an arbitrary ceiling on the amount of those costs. Furthermore, the court had to consider whether the appellant's costs of the appeal should be paid by the respondent or also come out of the notional estate.

The court reasoned that the Master's order as to costs was appropriate and that there was no justification for an arbitrary limit on the applicant's trial costs. Applying established principles regarding costs in family provision claims, the court extended this approach to the costs of the appeal, concluding that it was just and equitable for both the appellant's and the respondent's costs of the appeal to be paid out of the notional estate.

The court ordered that the Master's order as to costs be confirmed and that the costs of both the appellant and the respondent in relation to the appeal be paid out of the notional estate of the deceased.