Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 3) [2017] NSWSC 409

Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 3) [2017] NSWSC 409

James had no reasonable basis to continue defending the probate proceedings after receiving Glenda's medical evidence, and as such, failed to bring himself within exceptions allowing executor costs from an estate; thus, he is to pay Glenda's costs—on the ordinary basis up to and including 30 April 2016 and on the indemnity basis thereafter—from his own resources, with no recourse to the estate. John is entitled to his costs from the estate on the ordinary basis.

Parties
First Plaintiff: Glenda Phillips; Second Plaintiff: Lesley Catling; Third Plaintiff: Robert Phillips; Defendant: James Christopher Phillips; Plaintiff (in Second Proceeding): John Matthew Phillips by his Tutor NSW Trustee & Guardian
Jurisdiction
Australia
Judgment Date
13 April 2017
Procedural Posture
Probate/family Provision Proceedings (hearing Together) / Costs Determination After Judgment on Testamentary Capacity
Outcome
James to pay Glenda's costs: ordinary basis to 30 April 2016, indemnity basis thereafter, from his own resources. John to have his costs from estate on ordinary basis. James to repay estate any amounts already received for probate defence. James's estate share to be applied to Glenda's costs liability; balance to be...
Legal Topics
Testamentary Capacity, Executor Costs, Family Provision, Indemnity Costs
Wills and Estates Probate Costs Testamentary Capacity Executor Costs Family Provision Indemnity Costs

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Parties

Glenda Phillips

First Plaintiff

Lesley Catling

Second Plaintiff

Robert Phillips

Third Plaintiff

James Christopher Phillips

Defendant

John Matthew Phillips by his Tutor NSW Trustee & Guardian

Plaintiff (in Second Proceeding)

Procedural Posture

Probate/family Provision Proceedings (hearing Together) / Costs Determination After Judgment on Testamentary Capacity

Legal Issues

  1. 1 Whether executor/defendant James is entitled to his costs from the estate after unsuccessfully defending testamentary capacity suit; whether Glenda's costs should be paid on ordinary or indemnity basis; whether John is entitled to his costs from the estate

Ratio Decidendi

James had no reasonable basis to continue defending the probate proceedings after receiving Glenda's medical evidence, and as such, failed to bring himself within exceptions allowing executor costs from an estate; thus, he is to pay Glenda's costs—on the ordinary basis up to and including 30 April 2016 and on the indemnity basis thereafter—from his own resources, with no recourse to the estate. John is entitled to his costs from the estate on the ordinary basis.

Court Disposition

James to pay Glenda's costs: ordinary basis to 30 April 2016, indemnity basis thereafter, from his own resources. John to have his costs from estate on ordinary basis. James to repay estate any amounts already received for probate defence. James's estate share to be applied to Glenda's costs liability; balance to be...

Orders

  • The parties to bring in short minutes of order to reflect reasons, including gross sum costs orders where agreed.
  • John entitled to $16,000 costs (ordinary basis) to 3 April 2017 from the estate; future costs to be determined.