Brady v Mikan (No 2) [2022] NSWSC 1320

Brady v Mikan (No 2) [2022] NSWSC 1320

The Court held that the testator's fault exception did not apply because Kata executed the 2014 Will in an entirely regular fashion with the advice and presence of an experienced solicitor, and a change in testamentary dispositions did not itself amount to the testator causing the litigation. However, the capacity/approval case reasonably called for investigation, including because Professor Peisah's report provided a reasonable basis despite the Independent Witnesses' evidence. The Court allocated 65% of costs to the capacity/approval case and 35% to the unsuccessful undue influence and estoppel cases, so the Plaintiffs were to pay 35% of John's costs up to 13 August 2021 on the ordinary...

Jurisdiction
Australia
Judgment Date
29 September 2022
Procedural Posture
Probate Proceedings; Costs Determination / Costs Following Substantive Judgment in Brady V Mikan [2022] NSWSC 956
Outcome
Probate in solemn form of the Will dated 18 August 2014 was granted to John Mikan; the Plaintiffs/Cross-Defendants were ordered to pay part of the Defendant/Cross-Claimant's costs before 14 August 2021 and all of his costs from 14 August 2021 on the indemnity basis; John Mikan was indemnified from the estate for...
Legal Topics
['costs in Probate Litigation' 'reasonable Investigation Principle' "testator's Fault Exception" 'calderbank Offers' 'offer of Compromise' 'indemnity Costs' 'allocation of Costs by Issues']
['succession' 'probate and Administration' 'costs' 'equity'] ['costs in Probate Litigation' 'reasonable Investigation Principle' "testator's Fault Exception" 'calderbank Offers' 'offer of Compromise' 'indemnity Costs' 'allocation of Costs by Issues']

Case Brief

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Procedural Posture

Probate Proceedings; Costs Determination / Costs Following Substantive Judgment in Brady V Mikan [2022] NSWSC 956

Legal Issues

  1. 1 ["Whether the Plaintiffs/Cross-Defendants should have their costs paid out of the estate or should pay the Defendant/Cross-Claimant's costs." 'Whether the probate costs exceptions applied, including whether the testator caused the litigation and whether the circumstances reasonably called for investigation of the 2014 Will.' 'Whether the Offer of Compromise, first Calderbank offer or second Calderbank offer affected the appropriate costs order.' 'Whether costs should be allocated between the capacity/approval case and the undue influence and estoppel cases.']

Ratio Decidendi

The Court held that the testator's fault exception did not apply because Kata executed the 2014 Will in an entirely regular fashion with the advice and presence of an experienced solicitor, and a change in testamentary dispositions did not itself amount to the testator causing the litigation. However, the capacity/approval case reasonably called for investigation, including because Professor Peisah's report provided a reasonable basis despite the Independent Witnesses' evidence. The Court allocated 65% of costs to the capacity/approval case and 35% to the unsuccessful undue influence and estoppel cases, so the Plaintiffs were to pay 35% of John's costs up to 13 August 2021 on the ordinary...

Court Disposition

Probate in solemn form of the Will dated 18 August 2014 was granted to John Mikan; the Plaintiffs/Cross-Defendants were ordered to pay part of the Defendant/Cross-Claimant's costs before 14 August 2021 and all of his costs from 14 August 2021 on the indemnity basis; John Mikan was indemnified from the estate for...

Orders

  • ['Probate in solemn form of the Will dated 18 August 2014 of the late Kata Grguric (the Deceased) be granted to the Defendant/Cross-Claimant, John Mikan.' 'The proceedings be referred to the Registrar to complete the grant.' "The Plaintiffs/Cross-Defendants pay 35% of the Defendant/Cross-Claimant's costs of the...