Micallef v Linney [2020] NSWSC 1457

Micallef v Linney [2020] NSWSC 1457

Although there were suspicious circumstances requiring Gayle to establish affirmatively that the Testatrix knew and approved the contents of the Impugned Codicil, Maureen had no basis for alleging undue influence and, after service of affidavits from independent witnesses, no basis to continue challenging their evidence about execution. The suspicion arising from Gayle's conduct after death was removed once those affidavits were served. Justice therefore required that Maureen's costs be paid from the estate only on the ordinary basis up to and including consideration of the affidavits filed for Gayle and Denis, while Gayle and Denis's costs of the proceedings be paid from the estate on...

Jurisdiction
Australia
Judgment Date
22 October 2020
Procedural Posture
Contested Probate Costs Decision / Costs Following Probate in Solemn Form and Dismissal of Amended Statement of Claim, Decided on the Papers
Outcome
Costs ordered from the estate of the late Hope Marie Linney as specified; no other order as to costs.
Legal Topics
['contested Probate' 'probate in Solemn Form' 'costs From Estate' 'indemnity Costs' 'ordinary Costs' 'suspicious Circumstances' 'knowledge and Approval' 'undue Influence']
['succession' 'probate' 'costs'] ['contested Probate' 'probate in Solemn Form' 'costs From Estate' 'indemnity Costs' 'ordinary Costs' 'suspicious Circumstances' 'knowledge and Approval' 'undue Influence']

Case Brief

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Procedural Posture

Contested Probate Costs Decision / Costs Following Probate in Solemn Form and Dismissal of Amended Statement of Claim, Decided on the Papers

Legal Issues

  1. 1 ["Whether the plaintiff/cross-defendant's costs should be paid from the estate and, if so, on what basis and for what period." "Whether the first defendant/cross-claimant and second defendant's costs should be paid by the plaintiff/cross-defendant or from the estate and, if so, on what basis." 'Whether the testatrix was relevantly the cause of the litigation or the circumstances reasonably justified investigation of the impugned codicil.' 'What effect the unsuccessful allegation of undue influence and the affidavits of independent witnesses had on the appropriate costs order.']

Ratio Decidendi

Although there were suspicious circumstances requiring Gayle to establish affirmatively that the Testatrix knew and approved the contents of the Impugned Codicil, Maureen had no basis for alleging undue influence and, after service of affidavits from independent witnesses, no basis to continue challenging their evidence about execution. The suspicion arising from Gayle's conduct after death was removed once those affidavits were served. Justice therefore required that Maureen's costs be paid from the estate only on the ordinary basis up to and including consideration of the affidavits filed for Gayle and Denis, while Gayle and Denis's costs of the proceedings be paid from the estate on...

Court Disposition

Costs ordered from the estate of the late Hope Marie Linney as specified; no other order as to costs.

Orders

  • ['The costs of the plaintiff/cross-defendant up to and including the consideration of the affidavits filed on behalf of the first defendant/cross-claimant and second defendant be paid out of the estate of the late Hope Marie Linney on the ordinary basis.' 'The costs of the first defendant/cross-claimant and second...