Skinner v Frappell [No.2] [2007] NSWSC 1244

New South Wales Supreme Court

CITATION : Skinner v Frappell [No.2] [2007] NSWSC 1244

HEARING DATE(S) : 23, 24 and 25 October 2007

JUDGMENT DATE : 25 October 2007

JURISDICTION : Equity Division

JUDGMENT OF : McDougall J at 1

DECISION : See paras [17] and [18] of the judgment

CATCHWORDS : WILLS, PROBATE AND ADMINISTRATION – Costs – Plaintiff sought revocation of grant of probate – Exceptions to general rule that costs follow the event – Whether testator has been cause of litigation.

LEGISLATION CITED : Family Provision Act 1982

CASES CITED : Spiers v English [1907] Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136

Anthony Robert Skinner by his tutor Dianne Elizabeth Skinner (Plaintiff) PARTIES : Helene Marie Frappell (First Defendant) Leslie Frappell (Second Defendant)

FILE NUMBER(S) : SC 0262/06

COUNSEL : R W Evans (Plaintiff) L Ellison SC / L J Reid (Defendants)

SOLICITORS : Lee Hourigan and Brooks Solicitors (Plaintiff) Bradley J Smith Solicitor (First and Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

McDOUGALL J

25 October 2007 (Ex tempore – revised 26 October 2007)

02626/06 ANTHONY ROBERT SKINNER v HELENE MARIE FRAPPELL & ANOR JUDGMENT On costs 1 HIS HONOUR: The plaintiff asks that I revoke the order as to costs that I have indicated that I will make and that, as between the parties, I make no order for costs. 2 The general rule in probate actions is that, ordinarily, costs follow the event. This general rule is subject to two exceptions. One exception arises where the testator has been the cause of the litigation. The other exception arises where the circumstances reasonably led to an investigation of the will that is propounded for probate. See Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [125] (Ipp JA, with whom Mason P and McColl JA agreed). 3 The general rule and the exceptions may be clear. The application of those exceptions in a particular case may be somewhat difficult. For example, in Spiers v English [1907] P 122, Sir Gorell Barnes P stated at 123 that, "where the circumstances reasonably led to an investigation of the Will, costs may be left to lie where they fall." In that case his Lordship concluded it was not appropriate for the application of that principle. 4 Again, in Re Cutcliffe's Estate [1959] P 6, the litigation was said to have been engendered by statements made by the testatrix, and a document signed by her denying that she had made any will. Nonetheless, the trial judge (Collingwood J) ordered that costs should follow the event, and the Court of Appeal declined to upset his Lordship's reasons. That was a case where, as Hodson LJ makes plain at 19 and 21, it was not appropriate to say that the litigation was brought about by the fault of the testator and where the defendants, having undertaken the task of proof, and having failed, should not be relieved of a liability in costs. The reasoning of Morris LJ at 22 is to the same effect. 5 In this case, I have found that the deceased did make to Mr and Mrs Carter a statement to the effect that he had changed his will (made with them as attesting witnesses the previous day) because of representations made to him by the first defendant. I have also found in substance that the will that was propounded for probate and proved, and the attack on the validity which has failed, was a marked variation to the pattern of testamentary disposition hitherto undertaken by the deceased, and inconsistent with numerous statements made by the deceased during his lifetime as to the nature of his testamentary intentions. 6 In those circumstances, it seems to me that the plaintiff's attack upon the will had a reasonable foundation. As I have said, the alleged vitiating matter was attested to by reliable witnesses, whose evidence in substance I have accepted. The circumstances in which the will was made, coupled with that evidence, could reasonably lead, and in my view did reasonably lead, to an investigation. 7 Mr Ellison of Senior Counsel for the defendants submits that the plaintiff undertook the task of proving fraud, and failed. Thus, he submits, for this reason alone costs should follow the event. 8 It is correct to say that the plaintiff undertook the task of proving fraud. However, he did so in the circumstances where the decision of the Court of Appeal in Becker identified a distinction, not always perceived hitherto in the context of probate applications, between undue influence on the one hand and fraud on the other. The case that the plaintiff put was in substance a continuation of the undue influence case that he had sought to run earlier, with the relevant facts being said to lead in the alternative to the conclusion that fraudulent means had been engaged to procure the making of the will in question. 9 As I have said, I think that the circumstances in which the will was made, coupled with the deceased's statement, made it reasonable for some investigation to be undertaken. In the ordinary way, one might expect that investigation to have been undertaken through the mechanism of an opposed application for a grant of probate in solemn form. For whatever reason, that was not done. It is plain that the plaintiff was aware of Mr & Mrs Carter's allegations before the grant of probate was made (see the correspondence between their respective solicitors in PX 4). It is not apparent either from that correspondence or from other evidence when the plaintiff or those who supported and advised him became aware of this. It is not apparent whether, for example, they became aware of it early enough to require the will to be proved in solemn form. 10 In my view, if the case had proceeded as an opposed application for a grant of probate in solemn form, it would have been open to the Court to conclude that the opposition was reasonably based, and that the circumstances required some investigation of the will. In those circumstances, I think, there is a likelihood that had matters proceeded thus the costs of opposition would have been left, as Sir Gorell Barnes P put it, to lie where they fall. 11 The matter did not proceed thus as a matter of form. But in substance, with two exceptions, it did. The first exception relates to the alternative case of secret trust. The second exception relates to the case based upon the Family Provision Act 1982. 12 The first exception can be put to one side. It was based on the same material as the allegations of undue influence or fraud. I do not think that it led to any expansion whatsoever of the evidence, or to any real expansion of the submissions (written or oral). It was, in truth, a different legal characterisation, although with markedly different consequences, of the relevant factual matrix as alleged by the plaintiff. 13 The second exception, relating to the Family Provision Act application, did involve some separate evidence: specifically, the evidence of the plaintiff's needs. It attracted some additional submissions. Nonetheless, in the context of this litigation, it was but a minor bump on the surface of a large dirigible. There is no basis for thinking that it led to any great expense of time or cost that would not otherwise have been incurred in any event. 14 Mr Ellison submitted that in any event it must have become apparent to the plaintiff, or those who advised him, that the defendants had an answer to the plaintiff's primary case. He says that this should have become apparent when the defendants' affidavits in chief were served in December 2006. That submission assumes, in effect, that the plaintiff was not entitled to test that evidence. It overlooks, if I may say so, the matters of context with which I dealt - although adversely to the plaintiff - in my earlier judgment. 15 Mr Ellison points also to the circumstance that the plaintiff's legal advisers appear to have made no inquiry of the attesting witnesses. That appears to be the case. I am quite unable to see why it should have any real dispositive influence in circumstances where the defendants themselves appear not to have done so until a few weeks before the hearing. 16 In all the circumstances, although the matter is finely balanced, I do think that the interests of justice, in exercising the Court's discretion as to costs, require the application of the exception to the general rule to which I have referred. 17 I therefore revoke the order as to costs that I have made and in place of that order make an order that, as between the parties to this litigation, there be no order as to costs. 18 In those circumstances, as Mr Ellison accepted, it is appropriate also to make an order that the defendants' costs of the proceedings on the indemnity basis be paid out of the estate of the deceased, and I do so. ********