Re Wierzbowski - [2023] VSC 11

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 12743

IN THE MATTER of the estate of MAREK JAKUB WIERZBOWSKI, deceased
between
MACIEJ FRANCISZEK WIERZBOWSKI	Plaintiff
v
ALEXANDRA MAYA WIERZBOWSKI	Applicant
and
GALEA & FAUSTIN SOLICITORS	Non-party

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2022
DATE OF JUDGMENT:	25 January 2023
CASE MAY BE CITED AS:	Re Wierzbowski
MEDIUM NEUTRAL CITATION:	[2023] VSC 11

---

COSTS – Application for revocation of probate discontinued at commencement of trial – Probate granted in solemn form – Costs awarded against applicant on indemnity basis – Whether applicant’s former solicitors should indemnify applicant in respect of her costs – Whether applicant’s former solicitors breached their overarching obligations under the Civil Procedure Act – Requirement of proper basis – Obligation to ensure costs are reasonable and proportionate – Obligation to minimise delay – Civil Procedure Act 2010 (Vic) ss 18, 24, 25, 29.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Pietrzak Solicitors
For the Applicant	Mr N Bird	Vasilaras & Co Lawyers
For the Non-party	Lander & Rogers

HER HONOUR:

Marek Jakub Wierzbowski (‘the deceased’) died on 26 April 2021. He was survived by two adult children: his son, Adam Wierzbowski, and his daughter, Alexandra Maya Wierzbowski (‘the applicant’).

The deceased’s will dated 14 April 2021 (‘the will’) was signed by the deceased while he was a patient at Casey Hospital. The will appointed the deceased’s brother, Maciej Franciszek Wierzbowski (‘the plaintiff’) as his executor. The will provided that the deceased’s superannuation entitlements be shared between the plaintiff’s daughter, Agata Wierzbowski (‘Agata’), and the plaintiff’s granddaughter, Charlotte Lakowski (‘Ms Lakowski’), and bequeathed 40 per cent of the residue of the deceased’s estate to each of his children and the remaining 20 per cent to Agata.

On 6 August 2021 probate of the will was granted to the plaintiff. The deceased’s estate is valued at $625,996.26.

Application for revocation

By summons filed 4 February 2022, the applicant sought orders for revocation of the grant of probate, alleging that:

(a) the deceased was unlikely to have had testamentary capacity in the period shortly before and at the time of executing the will; and

(b) the will was executed in suspicious circumstances, giving rise to an inference that the deceased neither knew of the contents of the will nor approved of them.

Before commencing the application, the applicant’s solicitors did not contact the deceased’s treating medical practitioners or the deceased’s principal treating doctor at Casey Hospital, Dr Damian Hannon (‘Dr Hannon’), concerning the deceased’s capacity when he gave instructions for the preparation of the will and when he signed the will.

The applicant’s solicitors did not file a certificate as required by s 42(1B) of the Civil Procedure Act 2010 (Vic) (‘the Civil Procedure Act’) certifying that there was a proper basis for the application, nor was an overarching obligations certification provided by the applicant’s solicitors, as…

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 Wierzbowski

Details

AGLC: Re Wierzbowski [2023] VSC 11
Case: [2023] VSC 11
Decision Date: 25 January 2023

CaseChat Overview and Summary

In the case of Re Wierzbowski, the matter was before the Victorian Supreme Court. The applicant, Wierzbowski, sought to revoke a grant of probate, which was ultimately discontinued at the commencement of the trial. The dispute centred on the costs incurred during the proceedings and the question of who should bear these costs. The court was tasked with determining whether the applicant's former solicitors should indemnify her for the costs she incurred due to their alleged breach of their overarching obligations under the Civil Procedure Act.

The legal issues before the court were whether the applicant’s former solicitors breached their overarching obligations and, if so, whether they should indemnify the applicant for her costs. The court examined whether the solicitors had a proper basis for their actions, ensured that the costs were reasonable and proportionate, and minimised delay in accordance with the Civil Procedure Act. The court also considered the specific obligations outlined in sections 18, 24, 25, and 29 of the Act.

The court held that the applicant's former solicitors had indeed breached their overarching obligations under the Civil Procedure Act. The court found that their actions lacked a proper basis, did not ensure that costs were reasonable and proportionate, and did not adequately minimise delay. As a result, the applicant's former solicitors were ordered to indemnify her for the costs she had incurred. The court emphasised the importance of adherence to the overarching obligations to maintain the integrity of the legal process and to prevent unnecessary expenditure.

The court ordered the applicant's former solicitors to indemnify her for the costs she had incurred. This decision underscores the critical role of legal practitioners in upholding the principles of fairness and efficiency in litigation.

Orders