Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882

Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882

The Plaintiffs were wholly unsuccessful in propounding the 2017 Wills and, knowing of substantial capacity concerns and suspicious circumstances, participated in the preparation and execution of Wills under which they alone would benefit, failed to obtain or rely on responsive medical evidence, and conducted adversarial litigation to obtain the estates. The contest did not fall within the probate exceptions justifying payment of their costs from the estates, so costs should follow the event, with the Plaintiffs paying the Defendants' ordinary costs and the Defendants' indemnity costs otherwise borne by the estates.

Jurisdiction
Australia
Judgment Date
21 July 2021
Procedural Posture
Costs in Contested Probate Proceedings / Costs Determination After Principal Judgment
Outcome
The Court declined to order that the Plaintiffs' costs be paid out of the estates and ordered in each proceeding that the Plaintiffs pay the Defendants' costs calculated on the ordinary basis, with the Defendants' indemnity costs paid or retained from the estate and any difference paid out of the estate.
Legal Topics
['costs Following the Event' 'costs Out of the Estate' 'contested Probate' 'testamentary Capacity' 'knowledge and Approval' 'suspicious Circumstances']
['costs' 'probate' 'succession'] ['costs Following the Event' 'costs Out of the Estate' 'contested Probate' 'testamentary Capacity' 'knowledge and Approval' 'suspicious Circumstances']

Case Brief

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Procedural Posture

Costs in Contested Probate Proceedings / Costs Determination After Principal Judgment

Legal Issues

  1. 1 ["Whether the Plaintiffs' costs of each proceeding should be paid out of the estate of each will-maker or whether they should pay the Defendants' costs calculated on the ordinary basis." "Whether probate exceptions justified payment of the unsuccessful Plaintiffs' costs out of the estates."]

Ratio Decidendi

The Plaintiffs were wholly unsuccessful in propounding the 2017 Wills and, knowing of substantial capacity concerns and suspicious circumstances, participated in the preparation and execution of Wills under which they alone would benefit, failed to obtain or rely on responsive medical evidence, and conducted adversarial litigation to obtain the estates. The contest did not fall within the probate exceptions justifying payment of their costs from the estates, so costs should follow the event, with the Plaintiffs paying the Defendants' ordinary costs and the Defendants' indemnity costs otherwise borne by the estates.

Court Disposition

The Court declined to order that the Plaintiffs' costs be paid out of the estates and ordered in each proceeding that the Plaintiffs pay the Defendants' costs calculated on the ordinary basis, with the Defendants' indemnity costs paid or retained from the estate and any difference paid out of the estate.

Orders

  • ["Orders that the Plaintiffs pay the Defendants' costs, calculated on the ordinary basis." "Orders that the Defendants' costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate." 'Orders that any difference between costs calculated on the ordinary basis recovered from the...