Can You Afford to Pay Your Own Costs in an Estate Dispute?

In the decision of Re Veca [2015] VSC 74, the Supreme Court of Victoria refused to allow any amount of an unsuccessful applicant’s costs of challenging a Will to be paid by the estate, despite the executors of the estate agreeing to pay part of them.

In Re Veca, the deceased’s daughter lodged a probate caveat to prevent the executors nominated in her mother’s Will from obtaining a grant of probate from the Court on three grounds:

1. her mother lacked the requisite capacity to make the Will;
2. her mother did not know and approve the contents of the Will; and
3. her mother was unduly influenced by her son (the applicant’s brother) to make the Will.

At the time of lodging her objections, the daughter had received and reviewed an affidavit of the solicitor who took instructions from her mother to prepare the Will. That affidavit clearly set out the instructions that the solicitor received and his opinion that the deceased was able to understand the advice given to her and provide appropriate instructions.

Subsequently, the executors also filed an affidavit of a doctor who had met with the deceased at or about the time she prepared her Will. That affidavit stated that in the doctor’s opinion and based on his assessment, the deceased did have the requisite capacity to make her Will at that time.

Following receipt of this information and after she and the estate had already incurred considerable costs, the daughter withdrew her caveat.

The daughter then requested that the executors pay her legal costs in the amount of $14,700 from the estate. The executors agreed that some of her costs should be paid by the Estate, but did not agree to the amount that she was seeking. So the daughter made an application to the Court for orders that the executors pay her costs.

Ultimately, the Court denied the daughter’s request for any of her costs to be paid on the following grounds:

1. at the time the daughter filed her objections, there was sufficient evidence (in the solicitor’s affidavit) to show that she had poor prospects of succeeding;
2. the allegations made by the daughter were very serious and should not be entered into lightly and without property basis; and therefore,
3. there was no reason why costs should not follow the event.

The Court also ordered the daughter to pay the estate’s costs of the present application regarding costs.

The executors did not make any request for the daughter to pay the estate’s costs of the entire dispute. However, the Court noted that if the executor’s had made that application, the request would have been considered “favourably”.

This decision demonstrates the importance for all applicants to carefully consider their prospects before commencing any challenge to probate or a Will and to never assume that their costs will be paid by the estate, regardless of the outcome.

For more information or advice in relation to estate disputes, please contact us today.

This article was posted by the Bennett & Philp marketing team on behalf of the Estate Litigation practice group. The article was authored by a former team member while they were under the employ of Bennett & Philp Lawyers. Final revisions were made by a Director in charge prior to publishing.

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