Walker v Walker (No 3)

Case [2025] ACTSC 91

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Walker v Walker (No 3)

Citation: 

[2025] ACTSC 91

Hearing Date: 

7 March 2025

Decision Date: 

19 March 2025

Before:

McWilliam J

Decision: 

60% of the plaintiff’s costs are to be paid out of the estate.

Catchwords: 

COSTS – Probate proceedings – whether different principles apply in probate proceedings – whether plaintiff had mixed success – whether plaintiff failed on a dominant issue

Legislation Cited: 

Court Procedures Rules (2006) (ACT) rr 1705(1), 1721(1)

Family Provision Act 1969 (ACT) s 8

Cases Cited: 

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8

Elders Trustee & Executor Co Ltd v Eastor [1963] WAR 36

Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373

Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502

Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562

In the Estate of Rummer [2017] ACTSC 277

Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33

Kovacs v Fogarty (No 2) [2007] ACTSC 40

Latoudis v Casey (1990) 170 CLR 534

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Priestley v Priestley (No 2) [2016] NSWSC 1259

Re Buckton [1907] 2 Ch 406

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Tijong v Chang [2025] NSWCA 25 at [425]

Walker v Walker (No 2) [2025] ACTSC 9

Warton v Yeo [2015] NSWCA 115

Waters v P C Henderson (Aust) Pty Ltd (1994) 254 ALR 328

Wu v Wu (No 3) [2024] ACTCA 35

Parties: 

Briohny June Walker ( Plaintiff)

Janet Margaret Walker (First Defendant)

Janet Margaret Walker in her capacity as executor of the Estate of Joseph Walker (Second Defendant)

Representation: 

Counsel

G Blank ( Plaintiff)

W Sharwood ( Defendants)

Solicitors

Farrar Gesini Dunn ( Plaintiff)

KJB Law ( Defendants)

File Numbers:

PRO 681 of 2020

SC 442 of 2021

McWILLIAM J:         

  1. The parties in this proceeding were involved in a dispute over the will of the late Joseph Walker.  The plaintiff is one of the deceased’s daughters.  The defendant is the widow of the deceased and was sued in two capacities.  Judgment dealing with the substantive issues was delivered on 3 February 2025: Walker v Walker (No 2) [2025] ACTSC 9 (primary judgment).  Knowledge of the primary judgment and the issues it determined is assumed for the purposes of resolving the sole remaining question here, being who should pay the plaintiff’s costs.

Orders making family provision for the plaintiff

  1. Following a further hearing on 7 March 2025, the Court made the following orders:

    (1) The time for filing an application for an order under s 8 of the Family Provision Act 1969 (ACT) (FP Act) is extended to 20 October 2021.

    (2) Pursuant to s 8 of the FP Act, provision is made for the plaintiff out of the will of the late Joseph Walker as follows:

    a.    A lump…

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AGLC
Walker v Walker (No 3) [2025] ACTSC 91
Case
[2025] ACTSC 91
Decision Date

CaseChat Overview and Summary

The case of Walker v Walker (No 3) dealt with the issue of costs in a dispute over the will of the late Joseph Walker. The plaintiff, one of the deceased’s daughters, was involved in a legal battle with the defendant, the widow of the deceased, in two capacities. The substantive issues of the case had already been decided in Walker v Walker (No 2), which was handed down on 3 February 2025. The sole remaining issue to be resolved was who should bear the costs of the proceedings.

The court had to determine whether different principles apply in probate proceedings and whether the plaintiff, who had mixed success in the proceedings, could still be awarded costs out of the estate on a party and party basis. The plaintiff argued that since she had succeeded in obtaining an order for family provision and the ordinary rule that costs follow the event applied, her costs should be paid out of the estate. The defendants, on the other hand, argued that the plaintiff should pay her own costs or alternatively, only a quarter of her costs should be paid out of the estate, as she had only succeeded on one of three aspects of the proceedings, with the dominant issue being the validity of the 2018 Will.

After considering the arguments presented, the court decided that 60% of the plaintiff’s costs were to be paid out of the estate. The court found that even though the plaintiff did not succeed in challenging the validity of the will, her proceedings invoked the probate jurisdiction of the court, and there was a public interest in ensuring that the court gives effect to the last will of a free and capable testator. The court also considered that the plaintiff had succeeded in establishing circumstances which reasonably invited an investigation into the 2018 Will, and it was appropriate that her costs be paid by the estate.

Orders

Orders of the court

60% of the plaintiff’s costs are to be paid out of the estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties in this proceeding were involved in a dispute over the will of the late Joseph Walker. The plaintiff is one of the deceased’s daughters. The defendant is the widow of the deceased and was sued in two capacities. Judgment dealing with the substantive issues was delivered on 3 February 2025: Walker v Walker (No 2) [2025] ACTSC 9 (primary judgment). Knowledge of the primary judgment and the issues it determined is assumed for the purposes of resolving the sole remaining question here, being who should pay the plaintiff’s costs. Following a further hearing on 7 March 2025, the Court made the following orders:(1) The time for filing an application for an order under s 8 of the Family Provision Act 1969 (ACT) (FP Act) is extended to 20 October 2021.(2) Pursuant to s 8 of the FP Act, provision is made for the plaintiff out of the will of the late Joseph Walker as follows:a. A lump sum payment of $50,000 (“the lump sum”) within 42 days of these orders being made. b. The lump sum and interest as calculated below are to be treated as an advance on the plaintiff’s future entitlement as a beneficiary under the will of the late Joseph Walker.c. Interest is to accrue on the lump sum until the plaintiff receives her interest from the estate at the post-judgment interest rate provided for in the Court Procedures Rules (2006) (ACT) or any replacement.(3) The defendants’ costs are to be paid from the estate of the late Joseph Walker. … The remaining issue was whether, having succeeded on the family provision claim, the plaintiff was also to receive the entirety of her costs out of the estate. The plaintiff sought that her costs be paid out of the estate on a party and party basis. She argued that she had been successful in obtaining an order for family provision and that the ordinary rule that costs follow the event applied. Although the plaintiff did not succeed on her challenge to the validity of the will (referred to in the primary judgment as the 2018 Will), that part of the proceeding invoked the probate jurisdiction of the court. There is a public interest in such cases, in that the court is concerned to give effect to the last will of a free and capable testator or testatrix. Even though her challenge to the last will of the deceased did not result in the 2018 Will being found invalid, the plaintiff did succeed in establishing circumstances which reasonably invited an investigation into the 2018 Will and it was therefore appropriate that her costs be paid by the estate. The defendants sought that the plaintiff pay her own costs, or alternatively that one quarter of the plaintiff’s costs be paid out of the estate. This was on the basis that the plaintiff succeeded on only one of three aspects to the proceedings, the dominant issue being the validity of the 2018 Will. On the challenge to the will, the plaintiff failed. She also failed on the undue influence challenge to the deceased’s transfer of a half interest in the matrimonial home to the defendant, as part of his succession planning strategy.

Ratio Decidendi

Legal Principle Established

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