Lewis v Lewis (No 2) [2020] NSWSC 1519

Lewis v Lewis (No 2) [2020] NSWSC 1519

The defendant (Peter) was substantially successful because the plaintiff (David) failed to obtain probate for crucial alterations in the 2014 will and 2015 codicil; thus, David’s claim should result in an order that David pay 80% of Peter’s costs, and Peter should receive costs out of the estate for the benefit he provided to the residuary beneficiaries. The cross-claim is dismissed, and costs for it are ordered against Peter. Interest on costs shall run pursuant to statute.

Jurisdiction
Australia
Judgment Date
29 October 2020
Procedural Posture
Contested Probate Litigation / Costs and Final Orders Following Principal Judgment
Outcome
Plaintiff's claim (except limited probate) dismissed. Defendant's cross-claim dismissed. Probate granted (limited). Costs orders as between parties, and payment from estate for defendant’s costs. Referral to Law Society for defendant's conduct.
Legal Topics
['costs' 'probate' 'party/party Costs' 'payment Out of Estate' 'discretion in Costs Awarding' 'interest on Costs']
['equity' 'probate'] ['costs' 'probate' 'party/party Costs' 'payment Out of Estate' 'discretion in Costs Awarding' 'interest on Costs']

Case Brief

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Procedural Posture

Contested Probate Litigation / Costs and Final Orders Following Principal Judgment

Legal Issues

  1. 1 ['Appropriate costs orders in contested probate proceedings' 'Whether costs should be awarded against the estate and/or between parties' 'Basis for interest on costs' 'Form of probate grant limited to parts of will and codicil' 'Disposal of cross-claim' 'Referral for possible disciplinary action']

Ratio Decidendi

The defendant (Peter) was substantially successful because the plaintiff (David) failed to obtain probate for crucial alterations in the 2014 will and 2015 codicil; thus, David’s claim should result in an order that David pay 80% of Peter’s costs, and Peter should receive costs out of the estate for the benefit he provided to the residuary beneficiaries. The cross-claim is dismissed, and costs for it are ordered against Peter. Interest on costs shall run pursuant to statute.

Court Disposition

Plaintiff's claim (except limited probate) dismissed. Defendant's cross-claim dismissed. Probate granted (limited). Costs orders as between parties, and payment from estate for defendant’s costs. Referral to Law Society for defendant's conduct.

Orders

  • ['Administration of the estate of Pamela Lewis with the will of 19 December 2014 (limited to clauses 1 – 11) and codicil of 6 August 2015 (limited to clauses 3, 10 and 11) granted to Jeremy Neil Glass.' 'Proceedings referred to Senior Deputy Registrar in Probate to complete grant per Rules.' 'Administrator bond...