De Bruyne v Welstead [2022] NSWSC 886

De Bruyne v Welstead [2022] NSWSC 886

The Plaintiff acted unreasonably in commencing and maintaining claims in respect of purported testamentary documents whose authenticity was effectively and promptly challenged by the Defendant through expert and other evidence. Continuing the proceedings in face of clear expert evidence contrary to the Plaintiff’s claims, and failing to properly investigate before litigation, justifies an order that the Plaintiff bear his own costs and indemnify the Defendant. Defendant’s costs are to be paid from Plaintiff’s share of the estate, rather than the estate as a whole.

Jurisdiction
Australia
Judgment Date
05 July 2022
Procedural Posture
Probate Proceeding / Costs Determination Following Settled Proceedings
Outcome
Orders made as to costs: Plaintiff to bear own costs; Plaintiff to pay Defendant's costs on indemnity basis; Defendant's costs to be paid out of Plaintiff's share of the estate.
Legal Topics
['probate' 'costs' 'wills and Estates' 'settlement']
['equity'] ['probate' 'costs' 'wills and Estates' 'settlement']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Probate Proceeding / Costs Determination Following Settled Proceedings

Legal Issues

  1. 1 ['How the costs of probate proceedings should be borne after settlement, particularly when one party successively propounds documents later found, on available expert evidence, to lack authenticity.']

Ratio Decidendi

The Plaintiff acted unreasonably in commencing and maintaining claims in respect of purported testamentary documents whose authenticity was effectively and promptly challenged by the Defendant through expert and other evidence. Continuing the proceedings in face of clear expert evidence contrary to the Plaintiff’s claims, and failing to properly investigate before litigation, justifies an order that the Plaintiff bear his own costs and indemnify the Defendant. Defendant’s costs are to be paid from Plaintiff’s share of the estate, rather than the estate as a whole.

Court Disposition

Orders made as to costs: Plaintiff to bear own costs; Plaintiff to pay Defendant's costs on indemnity basis; Defendant's costs to be paid out of Plaintiff's share of the estate.

Orders

  • ["No order as to the Plaintiff's costs, the intent being that he bear his own costs of the proceedings." "The Plaintiff is ordered to pay the Defendant's costs, calculated on the indemnity basis, of the proceedings." "The Defendant's costs are to be paid out of the share of the deceased's estate that passes to the...