Starr v Miller; Starr v Miller (No 2)

HIS HONOUR: This is my judgment on the appropriate order for costs arising out of the trial of Probate proceedings, in which I delivered reasons for judgment on 6 May 2021 that bear the medium neutral citation Starr v Miller; Starr v Miller [2021] NSWSC 426 (“the principal judgment”). (There were also family provision proceedings dealt with in the principal judgment, but the costs thereof were agreed by the parties following it being published.)

In summary, in the principal judgment, I concluded that:

I directed the parties to deliver Short Minutes of Order to the Court in respect of both proceedings and this was done.

In the family provision proceedings, the parties, ultimately, agreed upon the form of orders, including the costs orders. I made the following orders on 31 May 2021:

In the Probate proceedings, I made the following orders on 31 May 2021:

There was no dispute that the Defendants’ costs of the Probate proceedings should be paid, or retained, as the case may be, out of the estate of the deceased. However, there remained an issue, solely in the Probate proceedings, about how the Plaintiff’s costs of those proceedings, should be borne. These reasons deal with that issue and should be read in the context of the principal judgment. At the conclusion of these reasons, I shall make the costs orders that reflect these reasons.

Despite the conclusion reached that the Statement of Claim should be dismissed the Plaintiff sought her costs out of the deceased’s estate. Indeed, she sought an order that those costs, calculated on the indemnity basis, and only, in the alternative, calculated on the ordinary basis, be paid out of the estate of the deceased.

In a letter dated 17 May 2021 from Mr T Young, solicitor for the Plaintiff, to Ms H Baker, solicitor for the Defendants, the following paragraph appeared:

However, on 26 May 2021, counsel for the Plaintiff provided written submissions to the Court, which included the following:

In an affidavit sworn on 28 May 2021 by Mr Young, it was confirmed that the Plaintiff would also seek an additional order for the costs of any argument about how the costs of the Probate proceedings should be borne.

The Defendants simply sought an order that there be no order as to the Plaintiff’s costs.

When the matter of the costs of the Probate proceedings was raised on 6 May 2021, the date on which I delivered the principal judgment, both counsel indicated that neither party would require written reasons for judgment on the costs question. Upon that basis, and in order to save the parties further expense and delay, I directed that written submissions should be delivered to the Court, in hard and soft copy, and stated that I would deal with the matter, in Chambers, without the need for oral argument.

However, in the written submissions delivered on behalf of the Plaintiff, to the Court on 26 May 2021, Ms B Regener of counsel stated that “[I]n the event that Court is against her, the plaintiff has requested written reasons for decision, given the significance of the sums involved to her”.

In those circumstances, I considered that I should not deal with the matter in Chambers and should allow the parties the opportunity for oral argument. That argument took place on 31 May 2021. It was conducted remotely, by audio link, and although listed for 2 hours, it took less time.

Subsequently, following the conclusion of the costs argument, the Court received an email from Mr Young which stated that “The Plaintiff no longer requires written reasons for his Honour’s decision on costs in the Probate matter”.

Whilst I am grateful to the Plaintiff and her legal representatives for the change of mind, I decided to provide reasons for my judgment on costs so that all parties understood the reasons for the orders made. Over 35 years ago, the High Court described "the requirement to give reasons ... as an ‘incident of the judicial process’, subject to the qualification that it is a normal, but not a universal, incident": Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; [1986] HCA 7 (Gibbs CJ).

As it happened, on 4 June 2021, the Court was informed that on 3 June 2021, the Plaintiff had filed a Notice of Intention to Appeal. (That, of course, is a notice that the applicant intends to file (a) a notice of appeal, or (b) if necessary, a summons seeking leave to appeal, within 3 months after the material date or such other period as the Court may order: UCPR r 51.6.) This provides an additional basis for providing reasons for judgment on the issue of costs: Wainohu v New South Wales (2011) 243 CLR 181, at [55] (French CJ and Kiefel J); [2011] HCA 24.

In any event, the Plaintiff is entitled to adequate, and written, reasons on the determination of how the costs of the proceedings should be borne. Importantly, the reasons do not need to be lengthy or elaborate. Indeed, as was written in Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 48; [2008] VSCA 212, at [12] (Maxwell P and Kellam JA):

The extent of the reasons to be provided must be assessed in the context of the application. In any event, it is enough that the parties and an appellate court understand why the Court has reached the particular outcome.

One basis relied upon by the Plaintiff for the application for costs of the Probate proceedings, related to an offer made in the proceedings. (I shall refer to the evidence of the offers made, referring specifically to the offer relied upon.)

On 6 September 2019, the Defendants made a Calderbank offer to settle the proceedings, on the basis that the Plaintiff receive a lump sum of $35,000 (in addition to the provision made for her in the deceased’s Will) and that her costs, as agreed or assessed, be paid out of the estate. It is unclear whether the offer was rejected or lapsed through effluxion of time. Neither party relied upon this Calderbank offer by the Defendants.

On 15 September 2020, the Plaintiff made a Calderbank offer, which was in the following terms:

It is unclear whether the offer was rejected or lapsed through effluxion of time.

On 12 February 2021, the Defendants made an offer to settle the proceedings upon the basis that the Plaintiff would receive a lump sum of $450,000 payable to the Plaintiff, inclusive of costs in respect of both proceedings. It is unclear whether the offer was rejected or lapsed through effluxion of time. Neither party relied upon the rejection of this Calderbank offer by the Plaintiff.

The Plaintiff relied upon the Defendants’ failure to accept the offer made on 15 September 2020 as a reason for making an order that her costs, calculated on the indemnity basis, be paid out of the estate of the deceased. She submitted that the terms of Paragraph 1 of the offer, if accepted, would have led to the same result as the Court had determined.

The Plaintiff also submitted that the result achieved by the Defendants was no better than the outcome they would have achieved had they accepted the Plaintiff’s offer. Since, in the offer, the Plaintiff was not seeking her costs of the Probate proceedings, the offer made, in respect of the Probate proceedings, was more favourable to the estate. In fact, the Defendants would have been $185,400 better off if they had accepted the offer. It was said that the Defendants’ non-acceptance of the offer resulted in the parties collectively “throwing away” $397,900 in costs.

In relation to Calderbank offers, I cannot do better than repeat what was written, as a short summary of the principles, by Ward J (as her Honour then was) in Ying v Song [2011] NSWSC 618 at [26]:

(Her Honour repeated the principles again, more recently, in Bassett v Cameron (No 2) [2021] NSWSC 419 at [22] – [25].)

The onus is on the party making a Calderbank offer to satisfy the court that it should exercise the costs discretion in its favour: Evans Shire Council v Richardson (No 2) [2006] NSWCA 61; Commonwealth of Australia v Gretton [2008] NSWCA 117.

I reject the Plaintiff’s submission made, based upon the Calderbank offer, for the following reasons:

For those reasons, it could not be said, even if the offer represented a genuine compromise of the dispute, that it was unreasonable for the Defendants to have not accepted the offer. Accordingly, I am not satisfied that the Court should exercise the discretion to order that the Plaintiff should receive her costs calculated on the indemnity basis, based upon the terms of the Calderbank offer of 15 September 2020.

I next turn to the submissions made going to whether, apart from the offer upon which the Plaintiff relies, there should be the order made that is sought by her.

In the principal judgment, I noted at [35] – [36]:

At [365], I wrote:

In regard to the failure to lodge a caveat preventing the grant of probate, the Plaintiff submitted, during the costs argument, that she did not receive written advice with respect to the deceased’s estate until after probate was granted and that, without such advice, she was unaware of, and could not file, a probate caveat. No evidence of when she received that advice, or its nature, were given. (Also, I note that the Plaintiff had not referred to the matter of late advice being given in Paragraph 5 of her Statement of Claim filed on 5 February 2020, to which I referred in [37] of the principal judgment.)

The Plaintiff submitted that she had issued a subpoena for medical evidence in November 2019, which provided support for the claims made in the probate suit and included a diagnosis of dementia. It was then, on the next occasion the matter was before the Court, in December 2019, that counsel raised with the Court the Plaintiff’s intention to file a probate claim, the Plaintiff, then, having obtained medical support for such a claim.

The Plaintiff contended that, other than for the delay, her conduct in the Probate proceedings was measured, and proportionate, to the questions to be determined. Further, there was, according to the Plaintiff, no prejudice or costs incurred to the Defendants by reason of the delay.

Counsel referred to Photios v Photios [2019] NSWCA 158, in which Bell P (Gleeson JA and Leeming JA agreeing) held, at [63], that:

The Plaintiff also submitted that her costs of the Probate proceedings should be paid out of the deceased’s estate, because the deceased’s conduct was the cause of the litigation. She contended that she had adduced both lay, and medical, evidence, in the proceedings, which had raised doubts about the deceased’s capacity, including the evidence of the deceased’s treating psychogeriatrician, which evidence related to the period during which the 2012 Will was made and which evidence gave support to the view that the deceased did not have testamentary capacity.

The Plaintiff submitted that the Court should exercise its discretion to order that her costs, calculated on the indemnity basis, be paid out of the estate. She said that the two related family provision suits had operated to increase her costs, requiring correspondence with two sets of solicitors. However, as I noted during the costs argument, there would have been a significant delay in hearing the probate and the family provision proceedings separately, and the costs of all parties would have been, significantly, increased if that had been done: Tcpt, 31 May 2021, p 06(06-09).

I had noted, at [26] of the principal judgment, that a concurrent hearing had been anticipated when the matters were set down for hearing and was made without objection of the parties. In any event, when both matters were set down for hearing, 7 days were allotted as the estimated duration of the hearing, but the hearing was, in fact concluded, in 6 days.

In oral submissions, counsel for the Plaintiff submitted that another basis on which the Plaintiff sought indemnity costs was “in respect of the family provision Cross-Claim, one of the other executors was the cross-claimant and the other two executors… indicated that they didn’t want to take part in any proceedings and didn’t want to incur any costs”: Tcpt, 31 May 2021, p 2(47-50).

However, as pointed out to counsel for the Plaintiff, the usual manner for a party in the Plaintiff’s situation to recover costs, in the event that she is unsuccessful in propounding a Will, or in defending the Cross-Claim, is to seek an indemnity from the parties whose interests are being protected.

In the circumstances, reference should be made to Pates v Craig; Estate of the late Joyce Jean Cole (NSWSC, 5 September 1995, Santow J, unrep) in which it was written, at [4]-[5]:

Furthermore, it is clear that the Plaintiff’s other two siblings, by having commenced their own proceedings for a family provision order, were not supporting the assertions made by the Plaintiff in the Probate proceedings.

The Defendants, firstly, reminded the Court of the Plaintiff’s failure to file a Probate caveat, or to take any action to prevent Probate of the Will being granted, despite the Plaintiff giving evidence of noting dementing speech patterns in the deceased, so she had said, from as early as 2009.

They submitted that the costs of the litigation had been significantly increased by the late challenge to the deceased’s Will, pointing to the fact that probate was granted in October 2018 and the Statement of Claim in the Probate proceedings was not filed until March 2020. This was undoubtedly true. Indeed, so were the Plaintiff’s costs.

The Defendants also pointed to the fact that the family provision matters were ready to be set down for hearing on 19 December 2019, when the Plaintiff indicated, for the first time, that she proposed to challenge the deceased’s Will. This had also caused a delay in the hearing of those proceedings.

The Defendants submitted that the only expert evidence led by the Plaintiff was that of Dr Cetiner, the psychogeriatrician, who had not been provided with all the relevant information. In particular:

It was unnecessary for senior counsel for the Defendants to make the point that the Plaintiff had been unsuccessful in the Probate proceedings. However, he did not submit that their costs should be paid by the Plaintiff, but that she should be left to absorb her own costs by the making of no order for her costs of the Probate proceedings.

Section 98 of the Civil Procedure Act 2005 (NSW) provides:

The use of this expression “full power to determine by whom, to whom and to what extent costs are to be paid” in the context of s 98(1)(b) “is to be understood as providing the Court with power (unconstrained except to the extent that it must be exercised judicially and in accordance with the relevant legal principles: Oasis Hotel Ltd v Zurich Insurance Company (1981) 28 BCLR 230 at 237 per Lambert JA), to make a costs order that it regards as just in all the circumstances of the case”: QBE Insurance (Australia) Limited v Hotchin [2013] NSWSC 315, per Bergin CJ in Eq, at [54].

As was written, “[t]he disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires”: Gray v Richards [No 2] [2014] HCA 47, at [2].

Any exercise of the discretion is to indemnify, or compensate, the successful party, not to punish the unsuccessful party. It is guided by well-established principles in order to promote consistency in decision-making: Norbis v Norbis (1986) 161 CLR 513, at 519 (Mason and Deane JJ, with whom Brennan J generally agreed); [1986] HCA 17.

The fundamental principle which guides the exercise of the discretion contained in s 98 is that costs should follow the event, and that the successful party is, prima facie, entitled to his, or her, costs against the expense of litigation: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] (McHugh J) (“Oshlack”). The discretion to be exercised has been described as absolute, unconfined, or unfettered, except that it is required to be exercised judicially, that is, not by reference to irrelevant, or extraneous, considerations, or capriciously, but on facts connected with, or leading up to, the litigation: Oshlack at [34] (Gaudron and Gummow JJ).

A successful party may be deprived of a proportion of his, her, or its, costs, or even required to pay costs to the other party, if the successful party succeeded only upon a portion of the claim, or failed on issues that were not reasonably pursued, or where the result of the litigation might be described as mixed.

There is academic commentary, by Professor Dal Pont, that the “central and overriding principle is that of doing justice to the parties in each particular case, it being judicially remarked that there is ‘no better test than the test of what is fair and just between the parties’” (see G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) at 6.15).

In Commonwealth of Australia v Gretton [2008] NSWCA 117, at [121], Hodgson JA (with whom Mason P agreed) observed that:

Next, reference should be made to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Rule 42.1 of the UCPR states:

UCPR rule 42.2 provides:

In Wright v Apthorpe [2020] NSWCA 300 at [54], Simpson AJA (with whom Bell P and McCallum JA agreed) wrote:

At the outset, it must be remembered that probate litigation is not entirely between parties, because they did not make the will in dispute, and the Court is required to determine whether a document of a will-maker, who is dead, is a valid testamentary instrument. There is a public interest in ensuring that the matter is properly proved: see Tu v Tu Estate of Tu [2008] NSWSC 458.

As was outlined by White J in Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 at [5]:

In Petrovski v Nasev; The Estate of Janakievska (No 2) [2011] NSWSC 1474, at [6]-[19], I set out the principles in relation to costs in probate proceedings that apply:

The first exception referred to above was applied by the New South Wales Court of Appeal in Perpetual Trustee v Baker [1999] NSWCA 244. In that case, the Court of Appeal ordered that both parties’ costs, on a trustee or indemnity basis, be paid out of the estate. The reasons given were as follows, per Giles JA and Brownie AJA at [13]-[14] and Cole AJA at [43]:

In Shorten v Shorten (No 2) [2003] NSWCA 60, Mason P, in obiter, at [19], observed that early cases in which the first exception was applied:

In cases where a challenge is made to testamentary capacity, more than mental frailty or the incapacity of the deceased is required to say that the deceased caused the litigation and that the case falls within the first exception: King v Hudson [2009] NSWSC 1500 at [12] (Ward J, as her Honour then was). In order to come within the first exception, and receive the benefit of a costs order, the unsuccessful party needs to show, relevantly, that the deceased was the "cause" of the litigation.

Usually, it is easier for an unsuccessful litigant to bring herself, or himself, within the second exception than the first. What is required in the second exception is that the circumstances led reasonably to an investigation. But in such a case, the unsuccessful party will, often, still be left to bear her, or his, own costs.

Sometimes, what is not referred to in dealing with the exceptions referred to in the authorities, is the observation in Davies v Gregory (1873) LR 3 P& D 28, at 33, that in order to engage the second exception, it is necessary that all proper steps should have been taken by the party challenging the Will as to the facts of the case. But if, having done so, the party opposing the grant, bona fide believed in the existence of the state of things, which, if it did exist, would justify litigation, then each party must bear her, or his, own costs.

More recently, a different view has been expressed in some probate judgements. In Fielder v Burgess [2014] SASC 98 at [65], Kourakis CJ observed that the costs principles in probate litigation were, arguably, anachronistic in modern times in which there is a greater concern with a need for proportionality in litigation and that it may soon be necessary to reconsider it. (His Honour’s view was based upon the fact that the probate exceptions were rooted in the inquisitorial exercise that was conducted by the ecclesiastical courts and the Probate Division, where the Court had to be satisfied of the validity of the will before it could pronounce for the will and have it admitted to probate.)

In Re Tsaousis [2019] VSC 511, at [32] – [33], McMillan J noted:

(Her Honour, in fact referred to Davies v Gregory in a footnote in this decision.)

A perusal of cases where costs orders have been made in favour of the unsuccessful propounder of a will reveals that there is no invariable practice.

As was said over a century ago in Miller’s Probate Practice (Maxwell: 1900 Ed.), at 438-439:

Ultimately, however, any costs order should reflect the way in which the proceedings were conducted and dealt with, or as was noted by Slattery J in Sydney Markets Credit Services Co-operative Ltd v Taylor (No. 3) [2015] NSWSC 1236 at [32], “[t]he costs order should reflect the reality of the contest”.

Section 98(1)(c) of the Civil Procedure Act distinguishes between costs awarded “on the ordinary basis” or “on an indemnity basis”. In Wright v Apthorpe, Bell P wrote at [3]:

At [58] – [61], Simpson AJA also noted:

Because of s 98(1)(c) of the Civil Procedure Act, and UCPR rule 42.2, the Court does have the power to make an order that the costs of the Plaintiff be calculated on the indemnity basis. The decision to award such costs will depend on the exercise of the Court’s discretion in light of the particular circumstances of the case. Again, ultimately, the question is whether the justice of the case requires the costs to be calculated on that basis: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343, at [10] (Allsop P, Basten & Young JA).

UCPR rule 42.5 provides:

Black CJ, in Re Wilcox; Ex parte Venture Industries (No 2) (1996) 72 FCR 151; [1996] FCA 1942, at 152 and 153, wrote:

In Di Carlo v Dubois [2002] QCA 225, the Queensland Court of Appeal also referred to a reason to justify departure from the usual rule of costs being calculated on the ordinary basis, as and when the justice of the case might so require, also noting, at [37], that the categories in which the discretion may be exercised are not closed.

In Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, Basten JA (with whom Giles JA and Young CJ in Eq agreed on this point), wrote, at [106]-[113]:

In Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161, the Court of Appeal stated, at [100]-[101]:

In Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5, Gray J, in the Full Court, wrote, at [17]:

The mere existence of facts and circumstances capable of warranting an order for costs calculated on the indemnity basis does not mean that the Court is obliged to make such an order, as costs, ultimately, remain in the discretion of the Court: Bolger v McDermott (No 2) [2013] NSWSC 1330 at [45].

There is no suggestion that the Civil Procedure Act, and the UCPR do not apply to probate proceedings.

Questions of costs, ultimately, require the exercise of discretion, which, in turn, usually requires assessment of a wide range of factors. Ultimately, in the light of all of the circumstances of the particular case, the Court must decide which costs order better achieves justice between the parties.

Before turning to the question of the basis for the calculation of any costs order, the Court should consider whether any costs order should be made in favour of the Plaintiff.

This is not a case where persons (the Defendants) obtained probate in common form of the 2012 Will and the grant was revoked, and probate in solemn form was granted of an earlier will (the 2006 Will). To the contrary there was a grant of Probate in solemn form of the 2012 Will (which effectively confirmed the earlier grant).

Following the commencement of the hearing, it was only the Plaintiff and the Defendants who were interested in the deceased’s estate under the terms of the 2006 Will. In other words, practically speaking, the Plaintiff was continuing the probate case to establish, for her own benefit, an enhanced basis for a greater share of the deceased’s estate (other than by way of her family provision claim). Subject to what has been said above, the Plaintiff’s probate claim was made by a beneficiary, adverse to the only other relevant beneficiary, and as such, the proceedings could be characterised as adversary litigation.

As I have stated, none of the other executors named in the 2006 Will propounded that Will with the Plaintiff. Indeed, the Defendants, one of whom (the first Defendant) was an executor named in that Will) opposed the Plaintiff’s application, and the Plaintiffs in the associated proceedings, who were also named as executors in the 2006 Will, accepted the validity of the 2012 Will, asserting, until the commencement of the proceedings, that adequate and proper provision had not been made for each of them.

That the Plaintiff opposed the first Defendant’s claim for a family provision order, which was the subject of a Cross-Claim filed in the Probate proceedings, cannot conceal the self-interested nature of the part the Plaintiff played in the proceedings. Her position in the Probate proceedings cannot be analysed as one where she was acting on behalf of the estate.

However, I bear in mind that there was no suggestion made during the Probate proceedings, that the Plaintiff, as one of four executors named in the 2006 Will, must have known from the outset that she was attempting to obtain the Court’s sanction to a document that could not be supported because there was a later valid Will of the deceased, of which Will Probate had been granted, and for that reason, she should be liable for costs of the proceedings: Boughton v Knight (1873) LR 3 P & D 64, per Sir James Hannen, at 77.

I have earlier referred to the Plaintiff’s delay in bringing the Probate proceedings. I take this into account in determining the costs orders that should be made, even though the delay in making the application to bring the Probate, whilst regrettable, was not, in my opinion, egregious. However, until that application was made, the Defendants were proceeding upon the basis that the claim by the Plaintiff was limited to one for a family provision order. Perhaps the real prejudice related to the significant costs that were incurred as a result of commencing those proceedings and continuing them to a final hearing.

Merely because the deceased’s medical condition raised triable issues as to her testamentary capacity and lack of knowledge and approval, does not require the Court to conclude that the deceased had been the “cause” of the litigation. Furthermore, it cannot be said that the deceased left her testamentary papers "in confusion" or that her conduct, in the form of irrational actions, gave rise to reasonable doubts about her testamentary capacity in 2012, and, thereby, was sufficient to make the deceased the "cause of the litigation" in the relevant sense.

In my view, there was insufficient evidence that the deceased conducted her life in such a way as would naturally lead others to suppose that she was of unsound mind, such as by acting strangely, or engaging in threatening, or violent, behaviour. This is not to say that the deceased’s cognitive abilities, throughout the period, were quite as good as depicted by the first Defendant.

I have not forgotten in stating the above, the Plaintiff’s evidence about her observations of the deceased. However, as I concluded at [314] of the principal judgment that:

I also referred to the conclusions regarding the medical evidence at [351] – [357] of the principal judgment. There was evidence, which was really not the subject of dispute, that at the time she made the Will in 2012, the deceased was suffering from dementia. This is a fact that is more cogent in determining how the costs of the Probate proceedings should be borne.

Furthermore, I had noted at [4]:

In my judgment, this is a case in which the available material could have reasonably led the Plaintiff to the belief that the 2012 Will was invalid. Her doubts as to the deceased’s capacity may be considered to have been reasonably held, at least until the Defendant’s evidence was completed, particularly the evidence of Mr Stuart, Mr Brough and Mr Hodges.

The Plaintiff ought to have given more detailed consideration to the evidence of the independent witnesses who had observed the deceased at the time she gave instructions for, and then executed, the 2012 Will. The contemporaneous correspondence addressed to the deceased by Mr Stuart did not suggest any lack of capacity. By the commencement of the hearing, the Plaintiff was the only person interested in propounding the 2006 Will. Furthermore, as submitted by the Defendants, the expert medical evidence was based on incomplete documentation, and the failure of the Plaintiff to provide that documentation to Dr Cetiner.

As found in [505] and [507] of the principal judgment, there was no evidence for a successful case to be based upon suspicious circumstances surrounding the execution of the 2012 Will. The deceased had provided clear instructions to Mr Stuart and others, as to her testamentary intentions and the reasons for them, which were recorded.

There was nothing particularly unusual about the probate litigation. By the time of the commencement of the hearing, it was a contest between two daughters of a parent who had revoked an earlier Will favouring all of her children equally, upon making a later will favouring one of her daughters, who had for a number of years provided care and support to her. There had been a change of circumstances which explained the deceased’s change of heart and there was both medical, and objective lay, evidence as to her testamentary capacity, as well as her knowledge and approval of the 2012 Will at the time.

In my view, the Calderbank offer in which she offered to have the Probate proceedings dismissed, perhaps, reflected that the Plaintiff (and her lawyers) considered that she was more likely to succeed in the family provision proceedings rather than in her claim made in the Probate proceedings. That, of course, is what occurred.

It would be most unjust, in circumstances where the first Defendant was entitled to the most significant share of the deceased’s estate and where the Defendants were successful in obtaining the grant of Probate in solemn form, (having previously obtained the grant in common form), for the estate (which practically speaking means the first Defendant), to bear not only the Defendants’ costs of the Probate proceedings, but also the Plaintiff’s costs thereof. Such an order would not ameliorate the expenses incurred by the successful party as a result of having been required to participate in the Probate proceedings.

I have considered whether I should order the Plaintiff to receive part of her costs of the Probate proceedings and order her to pay part of the Defendants’ costs of those proceedings. However, in order to avoid the parties incurring further costs in establishing the quantum of the parts of the costs, and in the interests of justice, I am satisfied that I should not do so.

Taking into account all of the matters set out above, and in the principal judgment, I am not satisfied that the Plaintiff has established an entitlement to costs, let alone indemnity costs, of the Probate proceedings in her favour out of the estate of the deceased. Accordingly, I decline to make any costs order of the Probate proceedings in her favour.

In my judgment, the proper course is to apply the principle enunciated by Sir Gorrell Barnes P that “if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them”: Spiers v English [1907] P 122 at 123; Middlebrook v Middlebrook (1962) 36 ALJR 216 at [217. I, too, am reluctant to do anything to create the idea that an unsuccessful litigant might get her, or his, costs out of the estate, without making a very strong case on facts. The lure of “costs out of the estate” is responsible for much unnecessary litigation: Re: Plant dec'd [1926] P. 139 at 152 (Scrutton L.J.). Whilst doubtful wills should not pass easily into proof by reasons of their costs, parties should not be tempted into fruitless litigation by the belief that their costs will be defrayed by others. This is not to say that a party should be punished for making such an application for invoking this Court’s supervisory jurisdiction in probate.

It is, therefore, unnecessary to consider the Plaintiff’s application for costs on the indemnity basis. Had I needed to do so, I would have rejected that part of her application for costs. There is simply nothing in the particular facts and circumstances of the case that enlivens the making of such an order for costs in the Plaintiff’s favour. Furthermore, it cannot be forgotten that the Plaintiff failed in her claim for the revocation of the Probate of the 2012 Will. Taking into account the whole of the evidence in the case and all its circumstances, some of which I have mentioned above, but remembering also my findings of fact detailed in the principal judgment, and also the submissions, the justice of the case does not warrant such an order.

In the Probate proceedings, the Court: