Lynch-Frame v Lynch-Foster; Lynch-Foster v Lynch-Frame [2012] NSWSC 65

Lynch-Frame v Lynch-Foster; Lynch-Foster v Lynch-Frame [2012] NSWSC 65

The claim for rectification was not reasonably commenced, and costs should follow the event; Ann Lynch-Frame is to pay Helen Lynch-Foster's costs except to the extent those costs exceed what is recoverable and may be taken from the estate. In probate, Ann Lynch-Frame is to pay additional costs occasioned by need for grant in solemn form, with remaining costs indemnified from the estate.

Parties
Plaintiff: Ann Michelle Lynch-Frame; Defendant: Helen Mary Lynch-Foster
Jurisdiction
Australia
Judgment Date
02 February 2012
Procedural Posture
Probate and Rectification Proceedings / Costs Determination After Claims Dismissed and Consent Orders Made
Outcome
Orders for costs and indemnification issued; proceedings for rectification dismissed; family provision claim to continue.
Legal Topics
Costs in Probate Action, Rectification of Will, Family Provision Claim
Succession Law Probate Equity Costs in Probate Action Rectification of Will Family Provision Claim

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

Ann Michelle Lynch-Frame

Plaintiff

Helen Mary Lynch-Foster

Defendant

Procedural Posture

Probate and Rectification Proceedings / Costs Determination After Claims Dismissed and Consent Orders Made

Legal Issues

  1. 1 Whether costs should follow the event or be paid out of the estate in probate and rectification proceedings
  2. 2 Whether the proceedings for rectification were reasonably commenced

Ratio Decidendi

The claim for rectification was not reasonably commenced, and costs should follow the event; Ann Lynch-Frame is to pay Helen Lynch-Foster's costs except to the extent those costs exceed what is recoverable and may be taken from the estate. In probate, Ann Lynch-Frame is to pay additional costs occasioned by need for grant in solemn form, with remaining costs indemnified from the estate.

Court Disposition

Orders for costs and indemnification issued; proceedings for rectification dismissed; family provision claim to continue.

Orders

  • In proceedings 2010/97776, plaintiff to pay defendant's costs in respect of issues tried separately from family provision claim.
  • Declare that to the extent defendant's costs of the separately tried issues on indemnity basis exceed amount payable and recovered from plaintiff, defendant may pay or retain difference out of estate.