Skinner v Frappell [No.2] [2007] NSWSC 1244

Skinner v Frappell [No.2] [2007] NSWSC 1244

Although the plaintiff failed in the attack on the will, the deceased's statement to Mr and Mrs Carter, the reliability of their evidence, the circumstances in which the will was made, and the departure from the deceased's previous testamentary pattern reasonably led to an investigation of the will. The secret trust and Family Provision Act aspects did not materially expand the litigation. The interests of justice therefore required application of the exception to the ordinary costs rule, with no order as to costs between the parties and the defendants' indemnity costs paid out of the estate.

Jurisdiction
Australia
Judgment Date
25 October 2007
Procedural Posture
Probate Action Concerning Revocation of Grant of Probate and Costs / Judgment on Costs
Outcome
The Court revoked the earlier costs order and made no order as to costs between the parties; the defendants' costs were ordered to be paid out of the deceased's estate on the indemnity basis.
Legal Topics
['revocation of Grant of Probate' 'exceptions to Costs Follow the Event in Probate Actions' 'whether Circumstances Reasonably Led to Investigation of the Will' 'costs Out of Estate']
['wills, Probate and Administration' 'costs'] ['revocation of Grant of Probate' 'exceptions to Costs Follow the Event in Probate Actions' 'whether Circumstances Reasonably Led to Investigation of the Will' 'costs Out of Estate']

Case Brief

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Procedural Posture

Probate Action Concerning Revocation of Grant of Probate and Costs / Judgment on Costs

Legal Issues

  1. 1 ["Whether the plaintiff's unsuccessful challenge to the will should attract the general rule that costs follow the event." 'Whether an exception applied because the deceased or the circumstances reasonably led to an investigation of the will propounded for probate.' "Whether there should be no order as to costs between the parties and whether the defendants' costs should be paid out of the estate."]

Ratio Decidendi

Although the plaintiff failed in the attack on the will, the deceased's statement to Mr and Mrs Carter, the reliability of their evidence, the circumstances in which the will was made, and the departure from the deceased's previous testamentary pattern reasonably led to an investigation of the will. The secret trust and Family Provision Act aspects did not materially expand the litigation. The interests of justice therefore required application of the exception to the ordinary costs rule, with no order as to costs between the parties and the defendants' indemnity costs paid out of the estate.

Court Disposition

The Court revoked the earlier costs order and made no order as to costs between the parties; the defendants' costs were ordered to be paid out of the deceased's estate on the indemnity basis.

Orders

  • ['The order as to costs previously made is revoked.' 'As between the parties to this litigation, there be no order as to costs.' "The defendants' costs of the proceedings on the indemnity basis be paid out of the estate of the deceased."]