Re Martin (No 2)
[2019] VSC 646
•23 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 05001
| IN THE MATTER of the estate of VALERIE PATRICIA MARTIN, deceased | |
| APPLICATION BY: | |
| JOHN PETER MOLLICA | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 23 September 2019 |
CASE MAY BE CITED AS: | Re Martin (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 646 |
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COSTS — Application for letters of administration on intestacy — Where plaintiff’s affidavits supported validity of informal will — Where plaintiff had no standing to bring application — Where plaintiff changed nature of application — Whether plaintiff’s costs should be allowed from the estate — Where Court appointed contradictors — Where plaintiff’s conduct prevented efficient administration of estate — Re Buckton; Buckton v Buckton [1907] 2 Ch 406.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr WF Gillies | Hill Legal |
| For the Contradictor | Ms AS Bartfeld | Suzanne Lyttleton Lawyers |
HER HONOUR:
Introduction
This proceeding was initiated by the plaintiff seeking a grant of administration on intestacy, alleging that he was the domestic partner of the deceased. In his application, the plaintiff exhibited the deceased’s will dated 4 October 2007 and the deceased’s unsigned informal will found to have been made in mid-2016. The plaintiff was not a beneficiary under either will.
In support of his application for a grant on intestacy, the plaintiff filed six affidavits that supported the informal will being valid, including affidavits by the beneficiaries under the informal will, Louise Gourley and Lucille Carpenter. The informal will did not appoint an executor and the beneficiaries did not seek to propound it.
The 2007 will appointed the deceased’s friend at the time, Ann Theresa McGrath, as executor. Initially, Ms McGrath intended to make an application for a grant but, after obtaining advice, she informed the Court that she considered the 2007 will was revoked.
The deceased was survived by her two adult children. At the time they were told of the plaintiff’s application on intestacy, they did not seek to be joined to the proceeding.
The first issue to determine was whether the informal will was a valid testamentary document. However, as no person represented the interests of the beneficiaries under the informal will or the adult children of the deceased, the Court appointed contradictors to represent the respective interests and allowed for the determination of the informal will in the proceeding as a matter of expedience and to minimise costs.
On 25 June 2019, the Court delivered reasons for judgment with the determination that the informal document was intended by the deceased to be her will.
Factual background
The deceased died on 25 January 2017. The main asset of the estate was the deceased’s home, which was valued in the inventory of assets at $350,000. After liabilities, the net estate was $249,807. The home was eventually sold for $487,500, although the sale of the home was delayed by the proceeding and the liabilities increased over that time. Overall, the value of the estate remained relatively modest.
Shortly after the deceased’s death, the plaintiff and Mrs Gourley, attended at the deceased’s home to search for the deceased’s testamentary documents. They found the 2007 will with the word ‘cancelled’ written on it and the undated informal will now found to have been written in mid-2016.
The plaintiff’s solicitor prepared affidavits naming Christopher Edwin Hill of the firm Hill Legal as plaintiff in an application for a grant of the informal will. In February 2017, affidavits were sworn by the current plaintiff, Mrs Gourley, Mr Gourley and Mrs Carpenter, supporting the propounding of the informal will. In March 2017, affidavits were sworn by Mrs Hocking and Mrs Williams, also supporting the informal will.
By 7 March 2017, the plaintiff changed his mind about proving the informal will and on 31 May 2017 he filed an application for letters of administration of the deceased’s estate on intestacy alleging that he was the deceased’s domestic partner. Nevertheless, the affidavits in support were directed to the informal will being valid.
By letter dated 13 April 2017, the Registrar of Probates raised the following requisitions:
(a) that the plaintiff had advertised and applied for a grant of administration on intestacy yet the six supporting affidavits supported an application for an informal will;
(b) many of the exhibits to the affidavits were not on file;
(c) as the plaintiff’s application was on the basis that he was the domestic partner of the deceased, the plaintiff was to file evidence stating the facts and circumstances giving rise to the alleged domestic relationship, including whether the plaintiff and the deceased lived continuously together for two years prior to the deceased’s death, and enclosed the online notice for practitioners setting out circumstances to enable the determination of the issue; and
(d) the originals of the informal will and the 2007 will were to be filed.
By letter dated 7 June 2017, the Registrar of Probates raised further requisitions, informing the plaintiff that the application on intestacy faced several difficulties, as follows:
(a) the deceased left the 2007 will, which the plaintiff contends is informally revoked and, in the absence of the original will, the Registrar is unable to assess that matter;
(b) the plaintiff filed an informal document apparently written in 2016 with evidence suggesting the document is valid, and that obviously does not assist his case.
(c) assuming the matters above can be successfully addressed, it is not at all clear that an application for administration by a ‘domestic partner’ could be granted in circumstances were the deceased and the plaintiff did not live together for two years prior to the death of the deceased, and the plaintiff is to refer to any authorities upon which he seeks to rely.
Notwithstanding these substantial issues raised by the Registrar, on 30 June 2017, the plaintiff sought a grant of administration ad colligenda bona, seeking to sell the deceased’s property, pay the deceased’s debts and for the plaintiff’s costs to be paid out of the estate.[1] In that application, the plaintiff asserted that he was the domestic partner of the deceased. The application was deficient in many respects, including due to the existence of the 2007 will and the informal will, and in that the plaintiff did not have standing to make the application as it was not clear that he was the domestic partner of the deceased. The application was listed for directions on 18 August 2017, when the deficiencies in the application were raised with the plaintiff. Subsequently, the plaintiff’s solicitor filed an affidavit sworn 21 August 2017. On 6 September 2017, the application was discontinued.
[1]Proceeding S PRB 2017 10262.
By letter dated 8 November 2017, the Registrar of Probates referred to an affidavit of the plaintiff’s solicitor sworn 19 October 2017 and stated that, in view of that affidavit, he could not deal with the application on the basis that the deceased died intestate until there was a resolution of the validity or otherwise of the 2007 will and the informal will.
Notwithstanding this information, the plaintiff’s solicitors persisted by filing a notice to produce the file, seeking a grant on intestacy to the Judge in Charge of the Trusts, Equity and Probate List. By email dated 23 February 2018, counsel for the plaintiff informed the Court that there was no opposition to the plaintiff’s application for a grant on intestacy but that the application raised the issue of standing and the status of the 2007 will and the informal will.
On return of the notice to produce on 2 March 2018, counsel for Ms McGrath, the executor named in the 2007 will, informed the Court that by 21 March 2018 Ms McGrath would file an application for a grant of probate of the 2007 will.
On 23 March 2018, counsel for Ms McGrath informed the Court that no application for a grant of probate of the 2007 will would be made as Ms McGrath believed the 2007 will to be revoked. Orders were made for the plaintiff to file and serve any further affidavits upon which he intended to rely in support of his application for a grant on intestacy.
By email dated 3 May 2018, counsel for the plaintiff informed the Court that ‘in principle’ distribution of the estate had been resolved with the deceased’s adult children and that they were aware of the application and did not propose to appear in the proceeding. In this regard, counsel referred to a letter dated 5 March 2018 to the solicitor for the adult children which and sets out how the estate would be distributed on intestacy and asks the solicitors to seek their clients’ instructions.
On 22 June 2018, the Court appointed contradictors, being Ms Bartfeld of counsel and Ms Talia, solicitor, to represent the interests of the beneficiaries under the informal document and the deceased’s adult children.
On 16 August 2018, the Court made orders granting letters of administration pendente lite to Ms Talia for the purposes of selling the deceased’s home, discharging the reverse mortgage and investing the proceeds of sale. On 4 October 2018, the Court made orders listing the proceeding for trial on 10 December 2018.
Thereafter, the contradictors filed further affidavits sworn by Mrs Gourley and Ms Carpenter, an affidavit by the deceased’s treating general practitioner, Dr Reeves, and two affidavits by Ms Talia. The plaintiff filed further affidavits sworn by the plaintiff, Mr Hill and Ms Williams.
Written submissions were filed by the plaintiff and the contradictors, dated 27 November 2018 and 6 December 2018 respectively. On the day of the trial, the plaintiff handed up a short outline of submissions. The trial took no more than 15 minutes with the parties relying on their respective affidavits and written submissions.
Judgment was handed down on 25 June 2019. The Court required the parties to file submissions as to the plaintiff’s costs in the proceeding.
Costs of the contradictors
The contradictors provided details of the work undertaken by them and the quantum of their costs amounted to $27,690 inclusive of counsel’s fees.
When the Court appoints contradictors, they are provided with the information concerning the tasks to be undertaken in their role and informed that their reasonable costs will be paid from the estate of the deceased. The contradictors’ task was complicated by the approach taken by the plaintiff in the proceeding. He initially appeared to be making an application for a grant of the informal will when he did not have standing and then changed position to seek a grant on intestacy. This approach caused delay and additional work for the contradictors, including investigations and the filing of further affidavits.
The contradictors’ work included inspection of the Court file,[2] perusal of filed documents, including the plaintiff’s 17 affidavits, inquiries of medical practitioners, friends, family, local Council and funeral directors, drawing further affidavits and submissions and attendances at Court. The Court is satisfied that the amount claimed by the contradictors is reasonable and should be paid from the estate of the deceased.
[2]Notwithstanding that the Court ordered the plaintiff to provide all relevant documents to the contradictors, the documents provided did not reveal all of the procedural history of the proceeding.
Costs of the plaintiff
The plaintiff seeks that his costs be paid from the estate of the deceased, to be taxed on the standard basis, in default of agreement.
The plaintiff seeks costs amounting to $33,589.57, being:
(a) $15,996.75 plus disbursements of $1,060.96 (for court and probate lodging fees) for costs associated with preliminary investigations into the validity of the informal document, preparation of the application for letters of administration and early estate administration; and
(b) $7,731.86 plus counsel’s fees of $8,800 for costs incurred after the appointment of the contradictors.
Quantum of plaintiff’s costs
Upon enquiry by the Court as to the calculation of the costs, the plaintiff’s solicitors forwarded their costs agreement with the plaintiff dated 7 March 2017, their itemised bills and counsel’s fee slips, all of which total $32,412.61 as follows:
(a) 27 January 2017 to 13 April 2018 (‘the first itemised bill’)[3]
[3]For the same period, the plaintiff’s solicitor deposed in an affidavit sworn 11 April 2018 that the plaintiff’s costs and disbursements to that date, inclusive of GST and counsel’s fees, were $30,200.
Plaintiff’s preliminary investigations into validity of the informal document, preparation of the application for letters of administration and early estate administration:
Professional fees $16,932.50
GST on fees $1,693.25
$18,625.75(a)Informal will determination (‘the second itemised bill’)[4]
[4]The amount claimed in the second itemised bill was incorrectly added up to $5,103.96 (incl. GST and disbursements).
Professional fees $3,469.00
GST $346.90
Disbursements $1,170.96
$4,986.86(b)Counsel’s fees
May 2018 to 27/11/18
Brief to appear, prepare
submissions and orders $4,400.00
10/12/19
Brief on trial $4,400.00
$8,800.00
The total of the costs in these documents is $1,176.96 less than the amount claimed in the plaintiff’s written submissions.
Where professional fees and disbursements are to be paid from a fund, such as an estate, the costs payable are governed by Part 3 of Order 63 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Pursuant to r 63.34, whether the basis of taxation is the standard basis or the indemnity basis, a legal practitioner for a party to whom costs are payable is entitled to charge and be allowed costs in accordance with the scale in Appendix A of the Rules, unless the Court or the Costs Court otherwise orders. A costs agreement determines the professional fees chargeable as between solicitor and client, not the costs of a proceeding payable from the fund, unless the Court otherwise orders.
The plaintiff’s costs agreement does not provide an estimate of the future or total legal costs, as ‘[a]t this point in time it is too difficult for us to estimate your future or total legal costs’. Attached to the costs agreement is a signed acknowledgement that the client has read the costs agreement, and bearing the following handwritten words:
Hill Legal’s work to date & investigatory costs should be paid by Estate. IF [the plaintiff] is personally responsible, ONLY DISBURSEMENTS
The professional fees are calculated pursuant to the costs agreement on an hourly rate plus GST charged out in 15-minute units. Where hourly charges have been applied by the solicitors, it is not always clear whether that work required legal skill or knowledge, or was administrative in nature.
The plaintiff’s first itemised bill includes at least $2,662 (inclusive of GST) for the plaintiff’s discontinued application for a limited grant made in June 2017. The usual rule where a proceeding is discontinued is that the party discontinuing bears their own costs and the costs of the other side.[5]
[5]Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 25.05, 63.15.
Costs for the ‘probate’ application on 1 March 2017 are claimed at $1,200 plus GST for one hour billed by ‘CHE’, who appears to be a senior paralegal charged out at $230 per hour. If the task took one hour then the charge of $1,200 is blatantly incorrect. If the charge is the ad valorem rate for obtaining a grant of probate, pursuant to r 9.01 of the Supreme Court (Administration and Probate) Rules 2014, then the GST of $120 should be deducted as the amounts provided in the Appendix to those rules are inclusive of GST.
The approach taken by the plaintiff in the proceeding generated 17 affidavits filed on his behalf, some supporting the informal will and others dealing with the plaintiff’s claim that he was the domestic partner of the deceased. Some affidavits duplicated the same matters in earlier affidavits — for example, the lengthy affidavit of the plaintiff’s solicitor sworn 25 January 2018 substantially replicates the affidavit sworn 19 October 2017, save for three paragraphs. The quantum of the costs does not take account of this duplication of work.
Counsel’s first fee slip for $4,400 (inclusive of GST) is said to be for the period after 22 June 2018, being the date of the appointment of the contradictors. It provides as follows:
Date Description Fees 28/11/2018 In the Supreme Court of Victoria, appearances – 3 May 2018, preparing submissions for application and appearance on 4 May 2018 0.00 26/06/2018 Appointment of contradictor 0.00 26/06/2018 Appointment of contradictor, settling affidavits (3 hours) 0.00 3/08/2018 Appearance before Her Honour 0.00 4/10/2018 Orders 0.00 27/11/2018 Preparing plaintiff’s submissions 0.00 27/11/2018 Total – 5 hours 4,400.00 Total payable
$4,400.00
There was no appearance on 4 May 2018 and that date is before the appointment of the contradictor. No affidavits were filed by the plaintiff around 26 June 2018 and there was no appearance on 3 August 2018. Due to the deficiencies in counsel’s fee slip, it is not possible to determine the appropriate fee, however it appears unlikely the amount should be $4,400.
Counsel’s second fee slip for $4,400 (inclusive of GST) is for trial preparation, including reading contradictor’s submissions, reviewing affidavits and submissions of contradictor and preparing submissions for trial. The trial was listed for a half day but took no more than 15 minutes, with the parties relying on the affidavits and their detailed written submissions. Given the modest size of the estate and the overarching obligations of practitioners to ensure that costs are reasonable and proportionate to the issues in dispute, counsel’s fee is excessive.
Plaintiff’s submissions
The plaintiff submits his application was made in circumstances where there was no executor named in the informal document and nobody else had made an application. Although the plaintiff’s application sought a grant on intestacy, some sort of application was required and costs would have been incurred by any person taking action in relation to the proper administration of the estate.
The plaintiff submits that extensive interviews and investigations were made into the potential validity of the informal document but, as no executor was named in the informal document, the plaintiff quite reasonably exhibited the informal document to his affidavit and filed affidavits by Ms Carpenter and Mr and Mrs Gourley. He also brought the 2007 will to the Court’s attention and, while the executor of the 2007 will indicated that she intended to make an application in respect of that will, that application did not eventuate.
The plaintiff submits that where probate litigation has been caused, or contributed to, by the way in which a testator made his or her testamentary intentions known, costs are usually ordered to be paid out of the estate. In this regard the plaintiff referred to Robinson v Jones (No 4),[6] where reference was made to Re Buckton; Buckton v Buckton (‘Re Buckton’) and the classes of case in which costs should be borne by the parties personally.[7] The plaintiff submitted that of the three classes of case, this proceeding falls into the first two classes and not the third class, and therefore the costs should be paid out of the estate.
[6][2016] VSC 160, [21] (McMillan J).
[7][1907] 2 Ch 406, 414 (Kekewich J) (‘Re Buckton’).
Applicable principles
Section 24(1) of the Supreme Court Act 1986 provides that costs are in the discretion of the Court. This discretion must be exercised in accordance with established principle. The ‘usual order as to costs’ is that a successful party in litigation is entitled to a costs order in its favour and the unsuccessful party bears the liability for the costs of the unsuccessful litigation.[8]
[8]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 (McHugh J).
Although the prima facie rule is that costs follow the event, where the litigation concerns probate, the costs are usually paid out of the estate if the litigation has been caused, or contributed to, by the way in which a testator made his or her testamentary intentions known or alternatively by the conduct of the residuary beneficiaries.[9] Where the testator is not the cause of the litigation but circumstances exist that reasonably call for an investigation, there is either no order as to the unsuccessful party’s costs or costs are paid out of the estate.[10] For there to be reasonable grounds that call for an investigation, it must be established that when proceedings were commenced all proper steps were taken to inform the challenger as to the facts of the case and, having done so, the challenger has been led reasonably to the bona fide belief that there was good ground for impeaching a will.[11] If there is no reasonable cause for investigation — that is, if the unsuccessful party has not acted reasonably — then the costs will usually follow the event.[12]
[9]Hall v Carney(No 2) [2012] SASCFC 105, [8]–[12] (Gray J). See also Reginald Alfred Becker v Public Trustee of New South Wales [2006] NSWSC 1146, [12]–[15] (Nicholas J); Murdocca v Murdocca(No 2) [2002] NSWSC 505.
[10]Ibid.
[11]Davies v Gregory (1873) LR 3 PD 28.
[12]Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562, [19] (White J); Spiers v English [1907] P 122; Re Cutliffe's Estate[1959] P 6; In the Will of Millar [1908] VLR 682.
The usual rules relating to probate litigation are founded on the public interest in ensuring that doubtful wills are not lightly admitted to proof by reason of the cost of opposing them and the importance of parties not entering into ‘fruitless litigation’ on the basis that their costs will be paid by others.[13] This reflects the concerns frequently expressed by courts on the proportionality of costs in litigation.[14] If the litigation is adversarial litigation, it is common for the Court to apply the usual rule as to costs and order that the unsuccessful party pay the other party’s costs.[15] This means that in respect of costs in probate litigation, it can no longer be assumed that the costs will be allowed either wholly or partly out of the estate.
[13]Mitchell v Gard (1863) 3 Sw & Tr 275, 279 (Sir JP Wilde); Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 709 (Powell J); Shorten v Shorten[No 2] [2003] NSWCA 60, [15] (Mason P).
[14]Fielder v Burgess [2014] SASC 98, [58], [65] (Kourakis CJ); Shovelar v Lane [2011] EWCA Civ 802, [44] (Ward LJ, Arden and Moore-Bick LJJ agreeing).
[15]Re Buckton (n 7); Murdocca v Murdocca (No 2) (n 9); Steel v Ifrah (No 2) [2013] VSC 167; Warton v Yeo [2015] NSWCA 115.
Consideration
The classes of case identified in Re Buckton were considered by the New South Wales Court of Appeal in Warton v Yeo by Ward JA as follows:
There are circumstances in which the costs of litigation concerning the administration of estates should be borne by the parties personally. Three classes of case can be identified. In the first, the applicants are trustees of a will who ask the court to construe the will for their guidance, in order to ascertain the interests of the beneficiaries. In the second class, the application is made not by the trustees (who are respondents) but by some of the beneficiaries because, for whatever reason, that course has been deemed more convenient. In the third class of case, the application is made by a beneficiary who makes a claim adverse to other beneficiaries, and as such, the proceedings are properly characterised as adversary litigation. In the first two classes of case, the costs of all parties are borne by the estate; in the third class, the costs are borne by the parties themselves.
If litigation seeking to construe a will falls within the first or second class of case, then the court is in substance carrying out the same task (with respect to costs) as it would have carried out had it been administering the estate itself. On the other hand, if such litigation falls into the third class of case, the court is concerned only with who, out of the parties before it, should pay the costs of any other of the parties before it (that is, it applies the usual rule as to costs), and does not need to be concerned about indemnification from the estate.[16]
[16] [2015] NSWCA 115, [78]–[79] (citations omitted).
The plaintiff’s submission that his application falls within the first two classes of case described in Re Buckton is a superficial characterisation of the proceeding. While it might be said that the deceased contributed to some confusion by leaving the informal will and the 2017 will, these wills did not cause the majority of the costs now claimed by the plaintiff. Most of the costs of the proceeding arise out of the manner in which the plaintiff conducted the proceeding. Two days after the deceased’s death the plaintiff and Mrs Gourley found the 2007 will and the informal will at the deceased’s home. On 27 January 2017, the plaintiff, Mrs Gourley and Ms McGrath attended on the plaintiff’s solicitor to ask about the probate process as there was confusion whether a valid will existed. Ms McGrath was advised to seek independent advice in respect of the 2007 will, which she subsequently did.
With the existence of those documents known, the order of determination of the validity of the deceased’s testamentary documents was, first, whether the informal will satisfied s 9 of the Wills Act 1997. As there was no named executor in the informal will, the beneficiaries under that document had standing to make such an application. The plaintiff was not a beneficiary and therefore had no standing to seek a grant. Accordingly, the beneficiaries should have been advised to seek independent legal advice. Instead, the plaintiff filed an application for a grant on intestacy alleging he was the domestic partner of the deceased but relied on six affidavits that supported the informal will being valid. This generated the Registrar’s first set of requisitions on 13 April 2017 highlighting the significant problems with the plaintiff’s application.
If the beneficiaries under the informal will had applied for a grant of the informal will, the adult children of the deceased, as the intestacy beneficiaries, would have been notified of the application. If they did not seek to be joined to the proceeding, the Court would have appointed contradictors to represent their interests. In the event that a grant of the informal will was made, that would finalise the disposition of the deceased’s estate. If the informal will was found not to be valid, the Court would then determine whether the plaintiff had standing to make the application on intestacy. As is evident from the Registrar’s requisitions, the plaintiff’s claim to be the domestic partner of the deceased faced a number of difficulties. Although the plaintiff’s evidence in relation to his claim to be the domestic partner of the deceased was not central to the determination of the informal will, it is evident that his relationship with the deceased was not as close as alleged by him.[17]
[17]Re Martin [2019] VSC 424, [14].
The manner in which the proceeding was commenced and conducted by the plaintiff was inconsistent and confusing, causing unnecessary costs, expenses and delay to the estate. The plaintiff’s application suffered from significant deficiencies, with affidavits filed in support of the informal will within his application for a grant on intestacy where his standing was doubtful. These multiple difficulties with the plaintiff’s application were clearly set out in the Registrar’s three letters dated 13 April 2017, 7 June 2017 and 8 November 2017.
Notwithstanding that the plaintiff received the letters from the Registrar dated 13 April and 7 June 2017, the plaintiff continued with his application and also issued a separate application on 30 June 2017 seeking a limited grant ad colligenda bona on the basis that he was the domestic partner of the deceased. The deficiencies of this application were raised with the plaintiff and, although his solicitor filed a further affidavit sworn 21 August 2017, the plaintiff discontinued the application on 6 September 2017.
The contradictors’ submissions also set out the fees incurred by the estate in liaising with all possible beneficiaries under the informal will and on intestacy regarding the deceased’s personal property, in cataloguing and storing the deceased’s belongings, and in dealing with the mortgagee of the deceased’s home so that it would cease taking possession of the home. Extra estate expenses were also incurred as a result of estate accounts being overdue and the increase in the amount owing under the reverse mortgage and other like expenses.
Conclusions
The litigation has not been caused, or contributed to, by the way in which the deceased made her testamentary intentions known. When the plaintiff and Mrs Gourley found the deceased’s informal will and the 2007 will, it should have been clear that there was a need to investigate the validity of those documents. When the plaintiff commenced his proceeding to seek a grant on intestacy, there was no need for an investigation into his standing in that application. The first and only application that should have been made was for the determination of the validity of the informal will. The issue as to the validity of the 2007 will fell away as the later informal will was found to be valid. The investigation of the plaintiff’s standing to seek a grant on intestacy could also only arise in the event the informal will was not valid.
The plaintiff’s conduct of the proceeding prevented the administration of the estate from being undertaken much more efficiently. The unilateral change in the nature of the plaintiff’s application, from initially proving the informal will to an application for administration on intestacy, has meant that the costs and estate expenses are much higher than if the estate been administered in a timely fashion.
The estate is modest and the contradictors’ costs are to be paid from the estate. For the reasons set out, the estate should not be depleted by a second set of costs.
Orders
The Court orders:
(a) the costs of the contradictors be paid out of the estate;
(b) no order as to the plaintiff’s costs;
(c) the proceeding be dismissed.
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