Tonkiss v Graham (No2); Estate Late Marjorie Bobs Thompson [2002] NSWSC 1093

Tonkiss v Graham (No2); Estate Late Marjorie Bobs Thompson [2002] NSWSC 1093

Given the conduct of the testatrix in having her Will executed before the spouse of an interested beneficiary, it is this conduct which is the substantial cause of the litigation. The litigation and investigation into section 13(2)(c) matters, including cross-examination, was warranted. Therefore, the costs (for both plaintiffs and defendants) should be paid from the interest of Lorraine Tonkiss in the deceased’s estate, and not by the unsuccessful defendants personally.

Parties
First Plaintiff: David James Tonkiss; Second Plaintiff: Lorraine Gay Tonkiss; First Defendant: Carolyn Graham; Second Defendant: Margaret Kathleen Horan; Third Defendant: Hamish Murdoch Angus McLean; Fourth Defendant: Jessie Eleanor Tamzin McLean; Fifth Defendant: Stephen David Tonkiss; Sixth Defendant: Samantha Jane Tonkiss; Seventh Defendant: Sue McKinnon Horton; Eighth Defendant: Stuart McKinnon Horton; Ninth Defendant: Robert McKinnon Horton; Tenth Defendant: Peter Douglas George Horton
Jurisdiction
Australia
Judgment Date
14 November 2002
Procedural Posture
Probate Suit / Post Judgment, Costs Determination
Outcome
Costs orders made as specified; no substantive change to prior grant of probate
Legal Topics
Interested Witness, Costs Order, Probate Suit, Gift to Interested Witness
Succession Wills Probate and Administration Interested Witness Costs Order Probate Suit Gift to Interested Witness

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

Parties

David James Tonkiss

First Plaintiff

Lorraine Gay Tonkiss

Second Plaintiff

Carolyn Graham

First Defendant

Margaret Kathleen Horan

Second Defendant

Hamish Murdoch Angus McLean

Third Defendant

Jessie Eleanor Tamzin McLean

Fourth Defendant

Stephen David Tonkiss

Fifth Defendant

Samantha Jane Tonkiss

Sixth Defendant

Sue McKinnon Horton

Seventh Defendant

Stuart McKinnon Horton

Eighth Defendant

Robert McKinnon Horton

Ninth Defendant

Peter Douglas George Horton

Tenth Defendant

Procedural Posture

Probate Suit / Post Judgment, Costs Determination

Legal Issues

  1. 1 Appropriate costs order in probate proceedings involving an interested witness
  2. 2 Whether the costs should be paid from the estate or from the beneficiary's share
  3. 3 Application of Part 52A Rule 29 of the Supreme Court Rules and section 13(2)(c) of the Wills, Probate and Administration Act 1898

Ratio Decidendi

Given the conduct of the testatrix in having her Will executed before the spouse of an interested beneficiary, it is this conduct which is the substantial cause of the litigation. The litigation and investigation into section 13(2)(c) matters, including cross-examination, was warranted. Therefore, the costs (for both plaintiffs and defendants) should be paid from the interest of Lorraine Tonkiss in the deceased’s estate, and not by the unsuccessful defendants personally.

Court Disposition

Costs orders made as specified; no substantive change to prior grant of probate

Orders

  • The sixth defendant's costs of the proceedings be paid from the interest of Lorraine Gay Tonkiss in the Estate of the Late Marjorie Bobs Thompson.
  • The seventh to tenth defendants inclusive to pay the plaintiffs' costs of the notice of motion concerning the subpoena.