Kemp v Findlay (No 2) [2024] NSWSC 1157

Kemp v Findlay (No 2) [2024] NSWSC 1157

Although Mr Findlay's failure to execute the 2019 Document raised a triable issue, the plaintiff had, before commencing proceedings, the key evidence supporting the informal will, including Mr Findlay's emails, Mr Wahhab's file note, and her own knowledge that Mr Findlay had said he changed his will to leave his estate to the children. In light of the family law settlement, release of estate claims, and the parties' fractious post-separation relationship, it was not reasonable for the plaintiff to pursue an expansive adversarial case for personal financial advantage. Mr Findlay was not the cause of the litigation in the relevant costs sense. However, because the defendant's proof of the...

Jurisdiction
Australia
Judgment Date
13 September 2024
Procedural Posture
Costs Application in Contested Probate Proceedings Concerning an Informal Will / Plaintiff's Motion to Vacate or Vary Costs Order After Judgment, Determined on the Papers
Outcome
Costs order varied; plaintiff's motion otherwise dismissed with no order as to costs.
Legal Topics
['informal Will' 'costs Following the Event' 'costs Out of the Estate' 'reasonableness of Opposing Probate' 'overriding Purpose' 'testator Fault Causing Litigation']
['costs' 'succession' 'probate'] ['informal Will' 'costs Following the Event' 'costs Out of the Estate' 'reasonableness of Opposing Probate' 'overriding Purpose' 'testator Fault Causing Litigation']

Case Brief

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Procedural Posture

Costs Application in Contested Probate Proceedings Concerning an Informal Will / Plaintiff's Motion to Vacate or Vary Costs Order After Judgment, Determined on the Papers

Legal Issues

  1. 1 ["Whether the testator's failure to execute the 2019 Document caused the litigation so as to justify costs being paid out of the Estate." 'Whether the plaintiff had reasonable grounds, based on her knowledge and means of knowledge, to question admission of the 2019 Document to probate.' "Whether the plaintiff's conduct of the proceedings was unreasonable or adversarial for personal advantage." "Whether the existing order requiring the plaintiff to pay the defendant's costs should be vacated or varied."]

Ratio Decidendi

Although Mr Findlay's failure to execute the 2019 Document raised a triable issue, the plaintiff had, before commencing proceedings, the key evidence supporting the informal will, including Mr Findlay's emails, Mr Wahhab's file note, and her own knowledge that Mr Findlay had said he changed his will to leave his estate to the children. In light of the family law settlement, release of estate claims, and the parties' fractious post-separation relationship, it was not reasonable for the plaintiff to pursue an expansive adversarial case for personal financial advantage. Mr Findlay was not the cause of the litigation in the relevant costs sense. However, because the defendant's proof of the...

Court Disposition

Costs order varied; plaintiff's motion otherwise dismissed with no order as to costs.

Orders

  • ["Vary Order 5 made on 26 July 2024 as follows: Order the plaintiff to pay 75% of the defendant's costs of the proceedings, either directly or by replenishing the Estate in respect of the defendant's costs." "Otherwise dismiss the plaintiff's motion filed on 9 August 2024 with no order as to costs."]