Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562

Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562

The circumstances called for investigation of testamentary capacity and, taking a broad view of the way Mrs Harris made and kept secret her wills, the deceased was the cause of the litigation, so the prima facie position was that defendants' costs should come out of the estate. That position was not qualified for the third to fifth defendants. It was qualified for the first and second defendants because they raised undue influence and delusion allegations that impugned the conduct of living persons, fell outside the rationale for ordering unsuccessful parties' costs to be paid out of the estate in probate litigation, and were raised unreasonably; a broad-brush adjustment awarding them...

Jurisdiction
Australia
Judgment Date
11 December 2012
Procedural Posture
Probate Costs Determination / Costs After Determination of Probate Proceedings, Including Costs of Applications for Appointment of an Administrator Pending Determination
Outcome
Costs orders made; plaintiff and third to fifth defendants to have costs out of the estate, first and second defendants to pay plaintiff's costs of the administrator applications and to receive only half of their other costs out of the estate.
Legal Topics
['costs in Probate Litigation' 'exceptions to Costs Following the Event' 'costs Out of the Estate' 'testamentary Capacity' 'undue Influence' 'administrator Pending Determination']
['succession' 'probate' 'costs'] ['costs in Probate Litigation' 'exceptions to Costs Following the Event' 'costs Out of the Estate' 'testamentary Capacity' 'undue Influence' 'administrator Pending Determination']

Case Brief

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Procedural Posture

Probate Costs Determination / Costs After Determination of Probate Proceedings, Including Costs of Applications for Appointment of an Administrator Pending Determination

Legal Issues

  1. 1 ['What costs order should be made for applications concerning appointment of an administrator pending determination of the proceedings.' 'What costs order should be made for the balance of the probate proceedings.' "Whether the deceased was the cause of the litigation so that defendants' costs should be paid out of the estate." "Whether the first and second defendants' conduct in raising undue influence and delusion issues justified reducing their entitlement to costs out of the estate."]

Ratio Decidendi

The circumstances called for investigation of testamentary capacity and, taking a broad view of the way Mrs Harris made and kept secret her wills, the deceased was the cause of the litigation, so the prima facie position was that defendants' costs should come out of the estate. That position was not qualified for the third to fifth defendants. It was qualified for the first and second defendants because they raised undue influence and delusion allegations that impugned the conduct of living persons, fell outside the rationale for ordering unsuccessful parties' costs to be paid out of the estate in probate litigation, and were raised unreasonably; a broad-brush adjustment awarding them...

Court Disposition

Costs orders made; plaintiff and third to fifth defendants to have costs out of the estate, first and second defendants to pay plaintiff's costs of the administrator applications and to receive only half of their other costs out of the estate.

Orders

  • ['That the plaintiff be entitled to her costs on the indemnity basis out of the estate.' 'That the costs of the third, fourth and fifth defendants be paid out of the estate on the ordinary basis.' "That the first and second defendants pay the plaintiff's costs of the applications heard by Palmer J for the...