Nobarani v Mariconte (No 2)

In *Nobarani v Mariconte (No 2)*, the High Court of Australia considered an application by the respondent, who had initially obtained a grant of probate in solemn form, for an order that the appellant's costs of the trial and subsequent appeals be paid out of the deceased's estate on a trustee basis. The grant of probate had ultimately been set aside on appeal.

The central legal issue before the High Court was whether the respondent's costs, incurred in defending the appeals and the initial grant of probate, should be paid from the deceased's estate and on a trustee basis, notwithstanding the unsuccessful defence of the grant. The court was required to determine if these costs were "properly and reasonably incurred" in connection with the "administration of the estate".

The High Court reasoned that an executor who seeks and obtains a grant of probate in solemn form, and subsequently defends that grant against appeals, is acting in the course of administering the estate. The court held that the costs incurred by the respondent in resisting the appeals were properly and reasonably incurred in the administration of the estate, even though the grant of probate was ultimately set aside. The principle applied was that an executor is generally entitled to be indemnified out of the estate for costs properly incurred in the administration, including litigation expenses, unless there are specific circumstances warranting a departure from this rule.

The High Court ordered that the costs referred to in specific earlier orders of the Court be paid from the estate of the deceased and on a trustee basis.