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Roche v Roche & Anor (No 2)

Roche v Roche & Anor (No 2)

Case [2017] SASC 75 5 June 2017

Making of a Will

Testamentary Capacity

Probate and Letters of Administration

Costs

General Principles

Succession Law

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SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
ROCHE v ROCHE & ANOR (No 2)
[2017] SASC 75
Judgment of The Honourable Chief Justice Kourakis
5 June 2017
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS - GENERAL PRINCIPLES
The plaintiff commenced proceedings for a revocation of a grant of probate issued to the defendants alleging that the deceased lacked testamentary capacity when executing his last will. The defendants filed a cross-action seeking a grant of probate in solemn form. The plaintiff’s application was dismissed and an order was made that a grant of probate be issued to the defendants in solemn form. The issue of costs now arises.
The plaintiff submits that the probate costs exceptions should be applied and that her costs be paid out of the deceased’s estate or in the alternative that there be no order as to costs. The defendants submit that the probate exceptions do not apply in the present case and the Court should not depart from the usual orders as to costs.
Held, per Kourakis CJ:
1. The plaintiff is to pay the defendants’ costs of the action on a party/party basis.
2. The defendants are to pay the costs thrown away by reasons of the late disclosure between Friday 13 November 2015 and 18 November 2015.
3. There be no further orders as to costs.
Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 263; Supreme Court Supplementary Rules 2014 (SA) r 195, referred to.
Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Roche v Roche & Anor [2017] SASC 8; Fielder v Burgess [2014] SASC 98; Barbon v Tessar [2015] VSC 597, applied.
Mitchell & Anor v Gard & Anor (1863) 3 Sw.&Tr 275; Boughton v Knight (1873) LR 3 P & D 64; Twist v Tye [1902] P 92; Spiers v English [1907] P 122; Middlebrook v Middlebrook & Anor (1962) 36 ALJR 216; Hall v Carney & Ors (No 2) [2012] SASCFC 105; In the Estate of Ponikvar (Deceased) (No 2) [2016] SASC 166, discussed.

ROCHE v ROCHE & ANOR (No 2)
[2017] SASC 75
KOURAKIS CJ.
Introduction

This is an application for costs on the dismissal of a testamentary causes action. Shauna Roche (Shauna) sought an order that a grant of probate issued to Fiona Roche (Fiona) and Deborah Ann Hamilton (Deborah) on 22 August 2011 in respect of a will executed on 16 February 2006 (the Will) by John Justin Roche (John) be revoked and that John’s penultimate will, as varied by two codicils, be admitted to probate in solemn form. Fiona and Deborah brought a cross-action seeking a grant of probate in solemn form of John’s Will dated 16 February 2006.
On 8 February 2017 I handed down judgment ordering that Shauna’s application for the revocation of the grant of probate issued on 22 August 2011 be dismissed and that there be…

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 Roche v Roche & Anor (No 2)

Details

AGLC: Roche v Roche & Anor (No 2) [2017] SASC 75
Case: [2017] SASC 75
Decision Date: 5 June 2017

CaseChat Overview and Summary

In the case of Roche v Roche & Anor (No 2), the dispute involved issues of succession, specifically the making of a will and testamentary capacity. The matter was heard in the Supreme Court of Victoria. The plaintiff, who was contesting the will of the deceased, argued that the deceased did not have the requisite testamentary capacity when the will was made. The defendants, the executors of the will, contended that the deceased had the necessary capacity and that the will should be upheld.

The court was required to determine whether the deceased had the testamentary capacity when the will was executed. This involved examining the circumstances surrounding the making of the will and the mental state of the deceased at that time. Additionally, the court had to address the issue of costs, particularly in relation to the late disclosure of documents and the adequacy of the time provided to respond to an offer made by the defendants.

The court found that the time allowed for a response to the offer was inadequate and that the offer appeared to be part of a strategy to suggest improper motivation on the part of the plaintiff. Consequently, the court gave no weight to the open letter of offer dated 30 October 2015. The court also ruled on the costs, determining that the plaintiff would pay the defendants' costs of the action on a party/party basis, and that the defendants would pay the costs thrown away due to late disclosure of documents.

In summary, the court upheld the will, finding that the deceased had testamentary capacity, and made specific orders regarding the costs associated with the litigation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ

I accept Shauna’s submissions that the time allowed for a response to the offer was inadequate. Furthermore, in the context of the letter it appears to have been part of a strategy to suggest that Shauna was improperly motivated by collateral considerations. Accordingly, I have given no weight to the open letter of offer dated 30 October 2015.Conclusion I make the following orders:·The plaintiff is to pay the defendants’ costs of action on a party/party basis.·The defendants’ are to pay the costs thrown away by reasons of the late disclosure between Friday 13 November 2015 and 18 November 2015.·There be no further orders as to costs.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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Citations

AGLC Citation

Roche v Roche & Anor (No 2) [2017] SASC 75

Most Recent Citation

Cases citing this decision · 18 of 18 shown

Earl v Walkom (No 2)
[2025] SASC 91 Para 17

…aries a forum in which to air family disputes with impunity. [4] [2020] SASC 213 at [11]-[17]. [5] [2023] SASC 135 at [12]. [6] [2014] SASC 98. [7] [2017] SASC 75. [8] In the Estate of Wenham (No. 2) [2023] SASC 135 at [12].…
Dahm v Dahm
[2025] SASC 70 Para 13

…(No. 2) [6] Kourakis CJ considered the basis upon which the costs discretion should be exercised in probate matters in the following terms:[7] [6] [2017] SASC 75. [7] Roche v Roche & Anor (No. 2) [2017] SASC 75 at [15]-[18]. In Barbon v Tessar ( Barbon ) McMillian J ordered that an unsuccessful defendant pay the…
O'Dea v McInerney (No 2)
[2024] SASC 143 Para 5

…or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent. [2] [2017] SASC 75 at [5]-[18] (‘Roche’) . [3] Ibid at [6] – [7].…
Cekan v Magiera (No 2)
[2023] SASCA 144 Para 8

…e made. Exceptions from the ordinary order will not be made to allow beneficiaries a forum in which to air family disputes with impunity. [5] [2017] SASC 75. [6] Roche v Roche (No 2) [2017] SASC 75 at [17]-[18]. See also Moloney v Hayward & Ors (No 2) [2023] SASC 36 at [58] (McMillan AJ).…
Sullivan v Greig (No 2)
[2023] QSC 119 Para 1

…[2017] SASC 75.…
In the Estate Of John David Nash (No 3)
[2023] SASC 81 Para 5

…of the estate.[4] [4] Fielder v Burgess [2014] SASC 98; Re Ponikvar (No. 2) [2016] SASC 166; Re Molnar (No. 2) [2016] SASC 159; Roche v Roche (No. 2) [2017] SASC 75. Consideration…
Magiera v Igor Cekan (No 2)
[2023] SASC 47 Para 10

…, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of the successful opponent.[2] [1] [2017] SASC 75. [2] Mitchell v Gard (1863) 3 Sw & Tr 275, 277-278.…
Moloney v Hayward (No 2)
[2023] SASC 36 Para 22

…n costs. [12] Citing, amongst others, Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 (‘ Perpetual Trustee v Baker ’); Roche v Roche (No 2) [2017] SASC 75; Brown v Sandhurst Trustees Ltd (No 2) [2009] VSC 406 (‘ Brown v Sandhurst ’).…
Brown v The Scout Association of Australia, South Australia Branch Inc
[2022] SASCA 104 Para 27

…l be made. Exceptions from the ordinary order will not be made to allow beneficiaries a forum in which to air family disputes with impunity. [34] [2017] SASC 75 at [5]-[18], quoted in In the Estate of Colin William Brown (No 2) [2021] SASC 129 at [8]. [35] Roche v Roche & Anor (No 2) [2017] SASC 75 at [18].…
In the Estate of Colin William Brown (deceased) (No 2)
[2021] SASC 129 Para 8

…plicable to the award of costs in the probate jurisdiction were set out by Kouarkis CJ in Roche v Roche & Anor (No. 2) in the following terms:[2] [2] [2017] SASC 75 at [5]-[18]. The overarching legal principle is that costs are in the discretion of the Court. This position is firmly embedded in section 40 of the…
Noyce v Jeromel (No 2)
[2021] SASCA 111 Para 17

…ll be ordered that those costs be paid out of the estate rather than by Paul Jeromel personally. [14] [2018] SASCFC 105. [15] [1937] SASR 252. [16] [2017] SASC 75. [17] [2019] SASC 13. [18] [2020] SASC 213. [19] [2021] SASC 61.…
Chronis v Karan (No 2)
[2021] SASC 101 Para 16

…plied when determining an application for costs in probate proceedings were helpfully analysed by Kourakis CJ in Roche v Roche & Anor (No 2) .[2] [2] [2017] SASC 75 at [5]-[18].…
In the Estate Of Amuso (No 2)
[2021] SASC 61 Para 8

…s the weight of that evidential material and prosecutes an unmeritorious case to trial, the usual order that costs follow the event will be made. [6] [2017] SASC 75. [7] [2017] SASC 75 at [18].…
Public Trustee v Taylor (No 2)
[2020] SASC 213 Para 15

…ng that since Fielder v Burgess there have been further judicial warnings that the probate exception might be invoked more sparingly. He said:[9] [8] [2017] SASC 75. [9] [2017] SASC 75 at [15]-[16] and [18]. In Barbon v Tessar ( Barbon ) McMillan J ordered that an unsuccessful defendant pay the plaintiff’s costs.…
Roberts v Pollock (No 2)
[2019] QSC 188 Para 3

…Roche v Roche & Anor (No 2) [2017] SASC 75 at [6] and following, and the cases referred thereto. See also the judgment of Applegarth J in Frizzo and Anor v Frizzo & Ors (No 2) [2011] QSC 177 at [26] and [27].…
In the Estate of Gwendoline Katherine Wilkinson (No. 2)
[2019] SASC 45 Para 4

…tigation concerning a deceased estate can no longer expect costs out of the estate. [1] [2014] SASC 98. [2] [2016] SASC 166. [3] [2016] SASC 159. [4] [2017] SASC 75.…
Green v Ellul (No 3)
[2019] SASCFC 23 Para 23

…, an order modifying the operation of the general rule may be made in an appropriate case if it is just to do so. [20] Roche v Roche & Anor (No. 2) [2017] SASC 75 at [5]. [21] Copping v ANZ McCaughan Limited [1985] SASC 4917, (1995) 63 SASR 523 at 527-528.…
London Borough of Harrow v. Johnstone
[1997] UKHL 9

…6. It has been held that the court has jurisdiction under its general statutory powers of granting injunctive relief to make orders protecting financial and proprietary remedies which may be awarded in the future even if section 37 of the Matrimonial Causes Act 1973 is not available because the pres…

View all 18 citing cases →

Cases cited in this decision · 7 of 7 shown

Roche v Roche
[2017] SASC 8 Para 19

…ormance was on the borderline of mild cognitive impairment and early dementia.[16] John remained under the care of Dr Hecker in 2005 and 2006. [15] [2017] SASC 8 at [446]. [16] [2017] SASC 8 at [446].…
In the Estate of Frances Ponikvar (deceased) (No. 2)
[2016] SASC 166 Para 16

…25 percent of the applicant’s cost of the trial on a party/party basis because she had pressed ahead against the weight of that evidence. [14] [2016] SASC 166.…
Barbon v Tessari (No 2)
[2015] VSC 597 Para 15

…been unsuccessful. The usual rules as to costs should apply, that is, the defendant should pay the plaintiff’s costs of the proceeding. [12] [2015] VSC 597. [13] [2015] VSC 597 at [19]-[20].…
Fielder v Burgess
[2014] SASC 98 Para 13

…n modern times in which there is a greater concern with the need for proportionality in litigation. It may soon be necessary to reconsider it. [10] [2014] SASC 98. [11] [2014] SASC 98 at [65].…
Hall v Carney (No 2)
[2012] SASCFC 105 Para 12

…In 2012, the principles affirmed in Middlebrook were applied by the Full Court of this Court in Hall v Carney & Ors (No 2) ( Hall ).[9] [9] [2012] SASCFC 105.…
Copping v ANZ McCaughan Limited
[1985] SASC 4917 Para 5

…Of course, an order modifying the operation of both rules may be made in an appropriate case if it is just to do so. [1] Copping v ANZ McCaughan Ltd (1995) 63 SASR 523 at 527-528 per King CJ (with whom Mohr and Nyland JJ agreed). [2] Supreme Court Civil Rules 2006 r 263(1).…
Mitchell v Gard
(1863) 164 ER 1280 Para 6

…ced upon it. Those who are instrumental in bringing about and subserving this inquiry are not wholly in the wrong, even if they do not succeed. [3] Mitchell & Anor v Gard & Anor (1863) 3 Sw & Tr 275, 277-278.…

Legislation cited in this decision · 2

Supreme Court Civil Rules 2006 (SA)
263, 263(1) 3 mentions (from Para 5)
Supreme Court Act 1935 (WA)
40 2 mentions (from Para 5)