Supreme Court New South Wales Medium Neutral Citation: Application by Craig-Bridges; The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian (No 2) [2016] NSWSC 1827 Hearing dates: 7 December 2016 Decision date: 16 December 2016 Jurisdiction: Equity Before: Stevenson J Decision: Ms Craig-Bridges to have her costs of each proceedings from the estate on the ordinary basis; the executor to have its costs of each proceedings from the estate on an indemnity basis Catchwords: COSTS – WILLS PROBATE AND ADMINISTRATION – SUCCESSION – where granddaughter disputed deceased's testamentary capacity to make her final wills and as executrix propounded earlier will – where testamentary capacity of final wills found – whether granddaughter should have her costs from the estate – whether deceased was the cause of the litigation – where granddaughter to receive provision from the estate – where offer of comprise made shortly before hearing and not accepted – where provision obtained less than offered – whether granddaughter should pay executor's costs on indemnity basis from time of offer Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Application by Craig-Bridges; The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian [2016] NSWSC 1611 Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280 Perpetual Trustee v Baker [1999] NSWCA 244 Shorten v Shorten (No 2) [2003] NSWCA 60 Category: Costs Parties: Helene Janelle Craig-Bridges (Plaintiff) New South Wales Trustee & Guardian (Defendant) Representation: Counsel: D Liebhold (Plaintiff) J E Armfield (Defendant) Solicitors: Prime Lawyers (Plaintiff) File Number(s): SC 2015/223952; 2015/377596; 2015/229491 Judgment 1. I gave judgment in these three matters on 16 November 2016: Application by Craig-Bridges; The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian [2016] NSWSC 1611. 2. I will use the same defined terms as in that judgment. 3. I concluded that Mrs Bush had testamentary capacity on the occasions that she executed each of the Impugned Wills. 4. I also held that provision should be made for Helene in an amount equal to one fifth of Mrs Bush's estate. 5. This judgment deals with the question of costs of the three proceedings. 6. In her proceedings Helene, as executrix (the other executrix, Helene's sister, had renounced probate) propounded the June 2011 will (and, alternatively, the 1990 will). Helene and her four sisters were the beneficiaries under the June 2011 will. Helene disputed Mrs Bush's capacity to make the later Impugned Wills. The bulk of the hearing time before me and, I apprehend, the bulk of the costs incurred by the parties, related to the dispute as to Mrs Bush's capacity to make the Impugned Wills. 7. On that issue, the Trustee has been successful and Helene has been unsuccessful. 8. In these circumstances, the question of costs is to be decided in light of the principles in Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280 at 1281. 9. Those principles include that if the testator is properly seen as being the cause of the litigation, the usual order is that the costs of a party in the position of Helene be paid out of the estate. 10. A testator has been found to be the "cause of the litigation" where "the conduct and habits and mode of life of a testator have given ground for questioning his [sic] testamentary capacity" (Perpetual Trustee v Baker [1999] NSWCA 244 at [14]), or where the deceased has engaged in "irrational actions giving rise to reasonable doubts about testamentary capacity provided they were genuinely held by those opposing the grant" (Shorten v Shorten (No 2) [2003] NSWCA 60 at [19]). 11. In my opinion, this is such a case. 12. As I recorded in my judgment, there was certainly "room for some doubt" about Mrs Bush's testamentary capacity (see [99] of the judgment). 13. That doubt arose primarily by reason of Mrs Bush's nomination of her brother, Cec, to be her executor of the 22 November 2011 will when Cec had been dead for many years. 14. Although I did not find that that conduct compelled the conclusion that Mrs Bush lacked testamentary capacity, it is a circumstance that, in my opinion, shows that, in the relevant sense, Mrs Bush can be seen to be the cause of the contest about her testamentary capacity and thus about the litigation on that subject. 15. In those circumstances, I am satisfied that I should order that Helene's costs in relation to the two probate suits should be paid out of the estate on an ordinary basis. 16. So far as concerns Helene's claim for provision, it is common ground that she should have her costs from the estate on the ordinary basis to 30 September 2016. 17. What divides the parties is the effect of an Offer of Compromise made by the Trustee on 30 September 2016 pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 20.26. 18. The offer was that any one of the Impugned Wills be admitted to probate and that Helene receive provision from the estate equal to one third of the net distributable estate. 19. Helene has obtained a result "no more favourable" than that offer in that I propose to order that she receive provision equivalent to one fifth, rather than one third, of the net distributable estate. 20. Accordingly, the effect of UCPR r 42.15 is that, unless I otherwise order, Helene must pay the Trustee's costs of the family provision proceedings from 1 October 2016 on an indemnity basis. 21. Helene's primary case was that Mrs Bush had no capacity to make the Impugned Wills. 22. As I recorded at [17] of the judgment, the effect of any of the orders Helene sought was that she and her sisters would share equally in Mrs Bush's estate. That is, she would receive one fifth of the estate. 23. Helene's claim for provision was made in the alternative, and only if any one of the Impugned Wills was admitted to probate. 24. Thus, at the outset of the hearing, Mr Ellison informed me that were I to conclude that Mrs Bush lacked capacity to make the Impugned Wills, Helene would not press her claim for provision. 25. The Offer of Compromise addressed all three matters before me; Helene's proceedings seeking to propound the June 2011 will, the Trustee's proceedings seeking to propound the Impugned Wills, and Helene's claim for provision. 26. In effect, the Offer of Compromise invited Helene to capitulate in relation to her probate proceedings and abandon her claim, as executrix, that the June 2011 will be admitted to probate. That claim was brought by Helene for the benefit of all beneficiaries named in that will. Helene was one of those beneficiaries, but her sisters were the others. Helene could not have accepted the offer without either obtaining her sisters' consent, unless she was prepared simply to ignore their interests in favour of her own. 27. The Offer of Compromise also offered Helene provision from the estate equal to one third of the estate and an order that her costs be paid from the estate; a better result than had she been successful in relation to the June 2011 will. 28. The Offer of Compromise posed a delicate problem for Helene. Should she prefer her own interests to that of her sisters and accept the offer? Or should she, as executrix of the June 2011 will, seek to uphold that will for the benefit of her sisters as well as herself. It is true, as Mr Armfield pointed out on behalf of the Trustee, that Helene was in a position of conflict. But that is because, no doubt by reason of the parties' desire to achieve a just, quick and cheap resolution of all the issues between the parties, these three proceedings were heard together. As it turns out, Helene chose to prefer her duty as executrix to her interest and did not accept the offer. 29. In those circumstances, I am persuaded that the justice of the case requires that I should otherwise order under UCPR r 42.15. 30. In those circumstances I make the following orders. 31. In proceedings 2015/223952: 1. Order that the plaintiff receive provision out of the estate of the late Ella Minnie Lillian Bush ("the deceased") in the form of a lump sum equivalent to 20% of the residuary estate of the deceased noting that the balance of the residuary estate will pass equally to the named beneficiaries therein, namely the Cancer Council of NSW and the Wee Waa Anglican Church. 2. Order that the defendant's costs calculated on the indemnity basis be paid out of the deceased's estate. 3. Order that the plaintiff's costs calculated on the ordinary basis be paid out of the deceased's estate. 4. The Court notes: 1. the application was made within time; 2. the plaintiff is an eligible person; 3. the plaintiff has served a notice identifying all other eligible persons on the administrator at the time of serving the summons; 4. the administrator has filed the administrator's affidavit and the affidavit of service of the notice of the plaintiff's claim on any person who is, or who may be an eligible person, as well as upon any person beneficially entitled to the distributable estate, and any person holding property of the estate, as trustee or otherwise; 5. the administrator has filed an appearance. 1. In proceedings 2015/377596: 1. Order that probate in solemn form of the will of the late Ella Minnie Lillian Bush dated 21 February 2013 be granted to the NSW Trustee & Guardian the executor named therein. 2. Order that the cross-claim be referred to the Probate Registrar to complete the formalities of the grant. 3. Order that the defendant/cross-claimant's costs calculated on the indemnity basis be paid out of the deceased's estate. 4. Order that the plaintiff/cross-defendant's costs calculated on the ordinary basis be paid out of the deceased's estate. 5. Order that the statement of claim and cross-claim be otherwise dismissed. 1. In proceedings 2015/229491: 1. Order that Helene Craig-Bridges be joined as defendant to these proceedings and dispense with the requirement to file and serve an amended summons. 2. Order that the plaintiff's costs calculated on the indemnity basis be paid out of the estate of the late Ella Minnie Lillian Bush. 3. Order that the defendant's costs calculated on the ordinary basis be paid out of the deceased's estate. 4. Order that the summons be otherwise dismissed. 1. Further, by consent, upon Helene, by her counsel giving to the Court an undertaking to prosecute any appeal with due expedition and efficiency, I stay the above orders. 2. I order that such stay will terminate: 1. if no notice of intention to appeal is filed within the time prescribed by the rules; 2. in the event a notice of intention to appeal is filed and no notice of appeal is filed thereafter, upon the expiry of the notice of intention to appeal or upon the solicitor for Helene Janelle Craig-Bridges notifying the NSW Trustee & Guardian that it is not intending to pursue any appeal; or 3. in the event a notice of appeal is filed, at the conclusion of any appeal instituted as a consequence of the filing of the notice of appeal. 1. I grant the parties liberty to apply on short notice as to the form of these orders. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2016