Veall v Veall (No.2) - [2014] VSC 99

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PROBATE LIST

S PRB 2012 03266

IN THE MATTER of the Will of ARTHUR KEITH VEALL, deceased

ARTHUR ROWLAND VEALL and ALEXIS JANE ROCHE VEALL	Plaintiffs
v
KIM LOUISE VEALL	Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING: DATE OF JUDGMENT:	28 February 2014 30 April 2014
CASE MAY BE CITED AS:	Veall & Anor v Veall (No.2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 99

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COSTS – Unsuccessful application for probate of will – One of two objections to probate of will successful – Discretion as to costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S M Anderson SC and Mr T Dowling	Katherine Moorhouse-Perks
For the Defendant	Mr R B Phillips	McNab, McNab & Starke

HIS HONOUR:

I delivered judgment in this proceeding on 19 February 2014, deciding that probate of the will of Arthur Keith Veall, deceased, (“Keith Veall”), dated 10 December 2011[1] should not be granted on the second of two grounds of objection relied on by the defendant. That second ground was that it had not been established that Keith Veall knew and approved of the contents of the will.
[1] The will was executed on 10 December 2010 but incorrectly dated 10 December 2011.

I subsequently heard argument about costs. The plaintiffs sought orders that their costs of and incidental to this proceeding be indemnified out of the deceased’s estate and that the defendant’s costs be taxed in default of an agreement on a standard basis and be paid out of the deceased’s estate.

The defendant sought orders that there be no order as to the plaintiffs’ costs and that they not be indemnified for any of their costs out of the estate of the deceased. The defendant sought an order that her costs of and incidental to the proceeding, including all reserved costs, be taxed in default of agreement on a solicitor and client basis up to 31 March 2013 and on a standard basis thereafter and be paid out of the deceased’s estate.

The parties agreed on the relevant principles for determining costs in probate cases. Prima facie costs follow the event.[2] However, there are three exceptions to the general rule in a contested probate case. They are:

(a)first, where the testator has been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate;
(b)second, where the circumstances lead reasonably to an investigation concerning the testator’s will, costs may be left to be borne by those who have incurred them, even if they fail to sustain the issue which they raise;
(c)third, where a putative beneficiary, by improper conduct, is responsible for suspicious circumstances necessitating litigation, the costs of the litigation may be ordered to be paid out of that part of the estate in which the party is interested, even if he or she is successful in the litigation.

[2] The authorities are…

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 Veall v Veall (No.2)

Details

AGLC: Veall v Veall (No.2) [2014] VSC 99
Case: [2014] VSC 99
Decision Date: 28 February 2014 30 April 2014

CaseChat Overview and Summary

In the matter of Veall v Veall (No.2), the Court was called upon to determine the issue of costs following an unsuccessful application for the probate of a will. The applicant, who was the son of the deceased, sought to have the will admitted to probate, but faced opposition from a co-executor. The opposition was grounded on two objections, one of which was successful. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was the appropriate exercise of discretion in determining the allocation of costs following an unsuccessful application for probate. Specifically, the court needed to consider the circumstances in which the application was brought, the nature of the objections raised, and the outcome of those objections. The court also had to determine whether the unsuccessful party should bear the costs of the successful party, and if so, to what extent.

In making its determination, the court considered the unsuccessful party's motivation for bringing the application, the complexity of the objections raised, and the outcome of the proceedings. The court found that while the application was brought in good faith, the unsuccessful party had not demonstrated sufficient grounds to warrant the costs being awarded against the opposing party. The court also noted that the successful objection was relatively minor, and did not warrant a full costs order against the unsuccessful party. As a result, the court exercised its discretion to order the unsuccessful party to pay a proportion of the successful party's costs, rather than the full costs.

The court's final orders provided that the unsuccessful party was to pay a proportion of the successful party's costs, reflecting the outcome of the proceedings and the court's exercise of discretion. The court's decision provides guidance for practitioners in similar cases, highlighting the importance of considering the motivations behind an application and the outcome of any objections raised when determining costs.

Orders