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Re Besanko (No 2)

Re Besanko (No 2)

Case [2020] VSC 281 19 May 2020

Costs

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 21447

IN THE MATTER of the will and estate of CONSTANCE BESANKO, deceased

-and-

IN THE MATTER of an application pursuant to s 9 of the Wills Act 1997

ROBERT JOHN BESANKO	Plaintiff
v
MANDY DOROTHY BESANKO-HOPPEN (in her capacity as executor of the estate of CONSTANCE BESANKO)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	19 May 2020
CASE MAY BE CITED AS:	Re Besanko (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 281

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COSTS — Where plaintiff sought probate of informal video will — Application pursued in disregard of known facts and established law — Application pursued for a collateral purpose — Where defendant executor acted properly and reasonably — Plaintiff to pay defendant’s costs on indemnity basis from his share of estate — Macedon Ranges Shire Council v Thompson [2009] VSCA 209.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Gillies
For the Defendant	Mr J Rizzi	Pearce Webster Dugdales

HER HONOUR:

On 9 April 2020, the Court dismissed the plaintiff’s application for probate of an informal video will of his mother (the ‘video will’), pursuant to s 9 of the Wills Act 1997.[1]
[1]Re Besanko [2020] VSC 170.

The defendant seeks her costs of the proceeding, paid on the indemnity basis, from the plaintiff’s share of the estate.

The plaintiff accepts that he is liable for the costs of the proceeding, but says that costs ought to be paid on the standard basis from the estate.

Relevant background

The background to the plaintiff’s application is set out in detail in the Court’s reasons for judgment.[2] The following account refers only to those matters that have a bearing upon the costs of the proceeding.
[2]Ibid [10]–[21].

The deceased died on 26 February 2014. Probate of her last will was granted to the defendant on 18 November 2015.

On 17 May 2016, the plaintiff filed an application for further provision from the deceased’s estate, pursuant to Part IV of the Administration and Probate Act 1958. He was represented by solicitors in that proceeding. The plaintiff says that he told his solicitors about the video will, but they did not view it. The Part IV application was settled at mediation on 14 December 2016. The terms of settlement required the plaintiff and his partner to vacate the estate property at 4 Bates Street, Malvern East (the ‘Bates Street property’) by 30 June 2017. They failed to do so.

The plaintiff asserted that he became aware that the video will may be an informal will sometime in October 2017, when he heard a radio program concerning digital wills. He took no steps to have the video will admitted to probate at that time.

On 20 November 2018, the defendant issued a warrant of possession for the Bates Street property, which was lodged with the…

Grounds of appeal

[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.

Continue reading Re Besanko (No 2)

Details

AGLC: Re Besanko (No 2) [2020] VSC 281
Case: [2020] VSC 281
Decision Date: 19 May 2020

CaseChat Overview and Summary

The case of Re Besanko (No 2) involved a dispute regarding the probate of an informal video will. The plaintiff sought to have the will admitted to probate, while the defendant, the executor, contested the plaintiff's application. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the plaintiff's application for probate should be granted or dismissed, and if the plaintiff should be ordered to pay the defendant's costs on an indemnity basis.

The court examined whether the plaintiff's application was pursued in disregard of known facts and established law, and whether it was pursued for a collateral purpose. The established legal principle in Macedon Ranges Shire Council v Thompson [2009] VSCA 209 was considered, which provides that costs can be awarded on an indemnity basis when a party pursues a proceeding in disregard of known facts and established law or for a collateral purpose. The court determined that the plaintiff's application met these criteria. The executor was found to have acted properly and reasonably in contesting the application.

The court concluded that the plaintiff's application for probate should be dismissed and ordered the plaintiff to pay the defendant's costs on an indemnity basis from his share of the estate. The decision underscores the importance of adhering to known facts and established law in legal proceedings and highlights the potential consequences of pursuing an application in a manner that disregards these principles. The final orders reflect the court's determination that the plaintiff's actions warranted such a penalty.

Orders