In the decision of Brown v Guss (No 2)  VSC 57, the Supreme Court of Victoria ordered an applicant who was unsuccessful in challenging a Will and his solicitor to pay the estate’s costs of the proceedings on the indemnity basis.
The deceased’s last Will was dated April 2010 and appointed her son as executor. The deceased’s grandson challenged the Will on grounds that the deceased did not have testamentary capacity, did not know or approve of its contents and it was procured by undue influence of the executor. Further, he sought to uphold a will of the deceased dated January 2010. The solicitor for the grandson was his father and the brother-in-law of the executor.
At trial, the Court upheld the April 2010 Will and found that:
- the evidence of the grandson and his solicitor was not credible;
- the grandson was unable to provide any evidence to support his claims regarding undue influence;
- the January 2010 Will propounded by the grandson was actually procured by his undue influence over the deceased; and
- ultimately, there was not sufficient doubt or concern as to the issues raised by the grandson to warrant any investigation or testing by the Court and therefore, it was unnecessary for any proceedings to be brought.
The executor also sought costs against the grandson’s solicitor because:
- the grandson was bankrupt and therefore, would not have any means to satisfy any costs order;
- the solicitor was a key witness in the proceedings and was found by the Court to lack credibility; and
- the solicitor placed himself in a position of conflict; and
- the solicitor stood to gain a benefit through the litigation, if his son was successful.
In light of the serious misconduct of the grandson in bringing the proceedings, the Court saw fit to order that he pay the estate’s costs of the proceeding on the indemnity basis.
Further, the Court determined that the solicitor should also pay the estate’s costs on the indemnity basis because he breached his overarching duties to the Court by:
- placing himself in a position of conflict (being a material witness in the proceedings and acting as solicitor for one of the parties);
- pursuing frivolous and vexatious litigation on behalf of his client in order to ventilate his own grievances against the deceased and executor; and in doing so, misleading and deceiving the Court.
This case is a sharp reminder of the importance to seek appropriate legal advice regarding the prospects of any claim before commencing Court proceedings, especially where there are allegations of fraud or dishonesty.
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