Bell v Crewes [2011] NSWSC 1159 (16 September 2011)

Last Updated: 11 January 2012

Supreme Court New South Wales

Medium Neutral Citation

Bell v Crewes [2011] NSWSC 1159

Hearing Dates

Friday, 16 September 2011

Decision Date

16/09/2011

Jurisdiction

Equity Division

Before

White J

Decision

Refer to paras [5 8 ] and [ 70 ] of judgment.

Catchwords

SUCCESSION - informal will - s 8, Succession Act 2006 - unexecuted document in form of will - whether intended to form will of deceased - whether deceased intended document "without more" to operate as his will - where deceased gave instructions to solicitor to prepare a new will - where deceased died before executing new will - deceased intended document to operate as his will only upon its execution - probate of informal will refused

COSTS - whether unsuccessful plaintiff in probate action entitled to have costs paid out of estate

Legislation Cited

Succession Act 2006
Wills, Probate and Administration Act 1898
Wills Act 1997 (Vic)
Wills Act 1970 (WA)
Wills Act 1837 (UK)

Cases Cited

Mahlo v Hehir [2011] QSC 243
In the Estate of O'Dell [2010] NSWSC 678
The Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported)
Hatsatouris v Hatsatouris [2001] NSWCA 408
In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446
Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862
Costa v The Public Trustee of NSW [2008] NSWCA 223
Oreski v Ikac [2008] WASCA 220
Estate of Peter Geoffrey Brock; Chambers v Dowker; Dowker v Chambers [2007] VSC 415
Mitchell v Mitchell [2010] WASC 174
Prucha v Standing [2011] VSC 90
Macey v Finch ([2002] NSWSC 933
Theakston v Marson [1832] Eng R 267; (1832) 4 Hagg Ecc 290; (1832) 162 ER 1452
Whiteley v Clune (No 2); the Estate of Brett Whiteley (Supreme Court of New South Wales, Powell J, 13 May 1993, unreported)
Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698
Shorten v Shorten (No 2) [2003] NSWCA 60
Public Trustee v New South Wales Cancer Council [2002] NSWSC 220

Category

Principal judgment

Parties

Dawn Lynette Bell (Plaintiff)
Peter Crewes (Defendant)

Representation

Bradfield & Scott Lawyers (Plaintiff)
Patrick Grimes & Company (Defendant)

D Knowles (Plaintiff)
G Bateman (Defendant)

File Number(s)

2010/314332

Judgment

1 HIS HONOUR: These proceedings concern the estate of Bruce William Crewes who died on 17 October 2009 aged 69.

2 The principal question is whether an unsigned will that had been prepared for the deceased should be admitted to probate pursuant to s 8 of the Succession Act 2006. If the document is not admitted to probate, there is a question as to whether probate should be granted of a will duly executed by the deceased and dated 9 July 2004. The original of that will came into the possession of the deceased, but could not be located after his death.

3 Section 8 of the Succession Act relevantly provides:

" 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(cf WPA 18A)

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or

...

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

... "

4 The deceased left an estate valued for probate purposes at approximately $3 million. The estate included an interest the deceased held in a property in Mosman. He held an interest in the property as a tenant-in-common with his wife. He held a nine-elevenths share in the estate. His wife holds the remaining two-elevenths share.

5 By his 2004 will, the deceased appointed his wife, the present plaintiff, and Mr Robert Littlejohn as his executors, after making various pecuniary and specific legacies.

6 He gave a one-eleventh share of the Mosman property to his wife, granted a life estate to his wife over the remaining eight-elevenths share in the Mosman property; directed that the remainder interest be held as to a 60 per cent share for his son Anthony, and as to a 40 per cent share for his son Peter; made detailed gifts of certain personal chattels; and left the residue of his estate as to a 55 per cent share to his wife, and as to the remaining 45 per cent share to his sons in unequal proportions.

7 The plaintiff deposed that, during early to mid 2009, the deceased raised with her his desire to review the terms of his 2004 will. Following an overseas holiday, the deceased said to the plaintiff words to the effect, " we must change our wills when we get home. "

8 The plaintiff is a solicitor by profession. The deceased gave her specific instructions as to changes he wished to make to his 2004 will. As a result of those instructions, the plaintiff prepared a new will.

9 The structure of the new will was similar to the 2004 will, but there were specific changes to individual bequests. The changes included the deceased leaving three-elevenths shares in the Mosman property to his wife, and leaving his remaining six-elevenths shares on trust for his wife for her life, and thereafter to his sons Anthony and Peter, in the proportion of 70 per cent and 30 per cent.

10 There are other changes, including changes to the residuary gift. All of the residue was to pass to the plaintiff if she survived the deceased for 28 days.

11 The plaintiff gave evidence that she and the deceased also discussed changes to be made to the plaintiff's will to, as she put it, " mirror each other's requirements ".

12 The plaintiff prepared a new will for herself in which she gave her shares in the Mosman property to her husband for his life, and after his death, on remainder for certain of her relatives. Likewise, the will that she prepared provided for her residuary estate to be given to her husband if he survived her for the requisite period, but otherwise on trust for certain of her relatives.

13 The plaintiff in her oral evidence said that she and the deceased had discussions about the execution of the documents. She said that although she could not remember the detail of those conversations, " Certainly we would have been executing them together. "

14 The plaintiff gave evidence that, after she had prepared the new will for the deceased, some time in the week between 4 and 11 October 2009, he said to her words to the effect, " I have read the new will - that's what we want - that's it. " She said to the deceased words to the effect, " We will need to have it signed ." He said, " Yes ."

15 The deceased died suddenly on 17 October 2009 without having executed the new will.

16 Mr Knowles, counsel who appeared for the plaintiff, submitted that the deceased expressly and unequivocally adopted the unsigned will by his words, " I have read the new will - that's what we want - that's it ."

17 The evidence given by the plaintiff as to the deceased's intentions must be scrutinized with care, given that the deceased is not able to give evidence, and her interest in the proceeding. Having done so, I have concluded that I ought to accept it.

18 However, I do not accept that the words used by the deceased indicate that it was his intention that the new will should be operative as his will from the time that he spoke the words, " that's what we want - that's it. "

19 Those words indicate that the deceased was happy that the document prepared by the plaintiff accurately expressed his testamentary intentions. Nonetheless, it is clear that both he and the plaintiff understood that the will would need to be signed, and he acknowledged the necessity for its signature.

20 Moreover, the appropriate inference is that the deceased intended to execute his will at the same time as the plaintiff executed her new will. It is to be inferred that he intended that the document would constitute his will from the time he signed it, which was intended to be the same time that his wife signed.

21 It is not probable, and I do not think there is evidence that would justify a conclusion, that he intended the document to be operative prior to signature, as the parties intended to make wills whose provisions mirrored each other. It is not probable the deceased would have intended that his will be operative before his wife's new will was operative.

22 The question is, whether the deceased intended the document " to form his ... will " within the meaning of s 8(2)(a) of the Succession Act .

23 Section 8 replaces s 18A of the Wills, Probate and Administration Act 1898. The sections are in a similar form, except that s 18A required the court to be satisfied that the deceased intended the document to " constitute " the person's will, rather than to " form " his or her will. However, those words are synonymous, and the same principles apply to the construction of s 8 as applied to the construction of s 18A of the Probate and Administration Act ( Mahlo v Hehir [2011] QSC 243 at [39]; In the Estate of O'Dell [2010] NSWSC 678 at [30]).

24 In The Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported) Powell J dealt with an application, that a draft will be admitted to probate pursuant to s 18A of the Probate and Administration Act 1988. The draft had been prepared by a solicitor. It had been approved by the deceased, and arrangements had been made for the deceased to attend on the solicitor, to execute not the document with which he was provided, but an engrossed will. She died before that could be done.

25 Powell J held that the draft will could not be admitted probate. His Honour said:

" ... before the jurisdiction conferred upon the Court by s18A of the Act may be exercised: 1. there must be a document; 2. that document must purport to embody the testamentary intentions of the relevant Deceased; 3 . the evidence - whether it be the form, or contents of the document itself, or evidence as to the circumstances in which the document came into being - must be such as to satisfy the Court that, either at the time of the document being brought into being, [ ] the relevant deceased, by some act, or words, demonstrated that it was his, or her, then intention that the document in question should, without more, operate as his, or her, Will. "
I assume that the words " or subsequently " should be understood as being inserted in the place I have sought to indicate.

26 As Mr Knowles in the course of his able submissions correctly submitted, the applicant for probate in that case failed because the deceased did not intend the draft document to be her will, but rather, an engrossed copy of the document that she intended to execute.

27 In the present case, it was submitted that I should infer that the deceased intended to execute the very document that he had read and approved.

28 I accept that there is this point of factual distinction. Nonetheless, the passage which I have quoted and which has been frequently applied does require that, to be admitted to probate, the deceased must have intended that the document in question should " without more " operate as his or her will. That intention, I think, need not necessarily exist at the time the document is brought into being, but it must exist some time before death.

29 The principle that the deceased should intend that the document should have an immediate operation as the deceased's will has been repeated on numerous occasions and is binding on me. Thus in Hatsatouris v Hatsatouris [2001] NSWCA 408, Powell JA (as his Honour had become) with whom Stein JA agreed, said (at [56]):

" It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s18A are essentially questions of fact, the particular questions of fact to be answered being:

(a) was there a document,

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?

(see, for example, The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray Powell J, 19 June 1992 (unreported)). " (Emphasis in original.)

30 The same principle was expressed in slightly different words in In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446. Mahoney JA said (at 454-455):

" Every document which a person prepares or executes is, in the sense here relevant, intended by him to be something: it may, for example, be intended to be a letter, a personal memorandum, a draft of something to be prepared later or a presently operative document. The section requires, of course, that the document to which it refers be of the latter kind. It must be intended that the document be presently operative and be operative as a 'will' .

There are, in the present context, several things which are relevant in that regard. First, the document must state the deceased's 'testamentary intentions ' , that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. A will may, of course, do other things: it may, for example, appoint a legal personal representative, exercise a special power, appoint a guardian or the like: see Halsbury's Laws of England , par 202. But it is the disposition of the deceased's property voluntarily after his death which is, for present purposes, the relevant characteristic of a will.

Secondly, it is a characteristic of a will, in the sense to which I shall refer, that it does not operate to bind the deceased during his lifetime. I mean by this that it is of the nature of a will that the deceased may, during his lifetime, freely dispose of property which has been dealt with by his will and that, during his lifetime, he may revoke or change the will that he has made. The significance of these matters has been referred to in, for example, Russell v Scott [1936] HCA 34; (1936) 55 CLR 440 at 448, 454; Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86. Neither of these matters is, I think in issue in the present appeal.

The third matter is of greater significance in the present case. Section 18A(1) requires not merely that the document propounded 'embody the testamentary intentions of ' the deceased but also that the deceased 'intended the document to constitute his ... will ' . For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law.

There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, 'an act in the law ' . It is something to which the law attaches the legal consequences of that kind of transaction: see Salmond and Williams , Principles of the Law of Contracts , 2nd ed (1945) at 4 et seq, citing Salmond, Jurisprudence , 7th ed (1924) at 360. Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or 'a trial run,' not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will. " (Emphasis added.)

31 Mahoney JA dissented on the facts, but his Honour's reasons were consistent with that of the other members of the court (see Kirby P at 452 and Priestley JA at 469). His Honour's statement of principle has also been frequently cited (see, for example, Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862 at [13].)

32 I do not consider that the observations of Basten JA in Costa v The Public Trustee of NSW [2008] NSWCA 223 at [110] are intended to cast doubt on the accuracy of his Honour's reasons.

33 In Oreski v Ikac [2008] WASCA 220, Newnes AJA with whom Martin CJ and McLure JA agreed, said (at [52]-[55]):

"[52] In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fact that arise under the New South Wales equivalent to s 34, those questions being:

1. was there a document?

2. did the document purport to embody the testamentary wishes of the deceased?

3. did the evidence satisfy the court that, either at the time the document was brought into being or at some later time, the deceased, by some words or act, demonstrate that it was their intention that the document should, without more on his or her part, operate as his or her will?

[53] That approach was followed in Perriman and by the learned primary judge in this case. In my respectful opinion, his Honour was right to do so. For present purposes, there is no material difference between s 34 of the Act and its New South Wales counterpart.

[54] It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446, 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.

[55] It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will."

34 Mr Knowles submitted that the insistence that the deceased intend that the document operate " without more " as his or her will, and that it have a present operation, was directed to the requirement that the document be in a final form, and that it not be intended, and that there be no contemplation of the possibility, that the document be amended before execution.

35 I do not think the requirement can be limited in that way. But there is some authority that supports the submission. Mr Knowles referred to the judgment of Hollingworth J in Estate of Peter Geoffrey Brock; Chambers v Dowker; Dowker v Chambers [2007] VSC 415, a case that dealt with s 9 of the Wills Act 1997 (Vic) that is in materially the same terms as s 8 of the Succession Act . Her Honour said (at [39] and [40]):

"[39] Section 9 was clearly intended to apply where the necessary formalities were not complied with merely as a result of inadvertence.

[40] On the other hand, if the deceased failed to sign the will or comply with formalities not by virtue of inadvertence or an ' act of God ' beyond his or her control (usually, dying before execution), but rather as a result of a ' conscious decision ' not to do so, including a reluctance to do so, the court is likely to decline to admit it to probate. "

36 Mr Knowles submitted that the necessary inference of the passage quoted is that if a deceased fails to sign the will, or comply with formalities, by virtue of an act of God beyond his or her control, such as by dying before execution, then the document is to be admitted to probate.

37 That does appear to be the inference to be drawn. But with respect, her Honour did not develop the proposition or explain why in those circumstances it would be inferred that the deceased intended the document to be his or her will before execution.

38 The point was taken further in Mitchell v Mitchell [2010] WASC 174. That was a stronger case than the present. But on the facts there was no relevant difference of principle.

39 In Mitchell v Mitchell , the deceased had been admitted to hospital. He gave instructions to solicitors to prepare a will. A will was prepared in accordance with those instructions. On the morning of his death, the deceased, having apparently expressed his approval of the contents of the draft will, stated that he would execute the document later that morning. He died shortly thereafter without executing the document.

40 After setting out the relevant passage from Oreski v Ikac quoted at [33] above, EM Hennan J said (at [42]):

"Some difficulty may be experienced with the phrase, utilised in Oneski v IKAC ' that the document [in question] should, without more on his or her part, operate as his or her will " , because in a case such as the present the inference must surely be that, had he not collapsed in the bathroom and died soon after, Mr Mitchell would have executed the will so that his intention at the time may be regarded as including an intention to have the document formally executed as a valid will as required by s 8 of the Wills Act so that, upon such execution, it would take effect at law. It is, therefore, possible to say in a strict sense that the deceased's intention was that the draft will would operate as his will once it was executed. However, I do not consider that this detracts from the effectiveness of the document as an informal will because s 32 itself does not use that phrase. Clearly, Newnes JA in that case was using that language to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. One must be careful to avoid placing any gloss upon the statutory language which, by s 32(2), focuses attention only on whether or not the document purports to embody the testamentary intentions of the deceased, even though it has not been executed in the manner required by the Act. "

41 In Prucha v Standing [2011] VSC 90 (at [7]), Beach J expressed his agreement with at least the last sentence of this paragraph. It goes without saying that one must be careful to avoid placing a gloss on statutory language. Section 32 of the Wills Act 1970 (WA) was in all material respects in the same terms as s 18A of the Probate and Administration Act (NSW). With respect, it is clear that s 32(2) does not focus attention only on whether or not the document purports to embody the testamentary intentions of the deceased. It also focuses attention on whether or not the deceased intended the document to constitute his or her will.

42 EM Hennan J went on to say (at [43]):

" Where s 32 goes on to provide for this court to be satisfied that the person intended the document to constitute the deceased's will, it cannot be taken as intending that it be a will complying with the requirements of s 8 because, otherwise, there would be no need for Pt X of the Act. This case highlights the position that the breadth of the section and the Parliamentary intention are that a document which embodies the testator's settled testamentary intention is entitled to be admitted to proof notwithstanding that it has not been executed."

43 There can be no quarrel with the proposition that these sections allow a document to be admitted to probate, notwithstanding that they do not comply with the formal requirements for the execution of wills. But with respect, the provisions do not state a parliamentary intention that a document is to be admitted to probate merely because it embodies the deceased's testamentary intention. The legislation expressly requires that the deceased intend that the document form or constitute the person's will.

44 A requirement that the deceased intend without more that the document constitute his or her will, or, that is to say, that the deceased intend the document have a present operation as his or her will, is not to put a gloss on the statute. Rather, it gives effect to the requirement that the deceased intend that the document form or constitute his or her will.

45 If the deceased's intention is that the document will form his will only on the occurrence of a future event, and that event does not occur, then it cannot be said that he or she has the requisite intention. That may lead to apparently harsh results in cases where it can be concluded confidently that the deceased wished his or her property to be left in the way provided for in the document. That was the case in Mitchell v Mitchell , and is the case here. But while a beneficial interpretation must be given to the legislation, it is not possible to apply the section unless it can be found that the deceased intended the document to form his or her will.

46 I was referred to the discussion that appears in Macey v Finch ([2002] NSWSC 933 of the position in relation to the admission of wills to probate before the Wills Act 1837 (UK). Young J (at [17]) extracted a passage from the judgment of Sir John Nicoll in Theakston v Marson [1832] Eng R 267; (1832) 4 Hagg Ecc 290; (1832) 162 ER 1452, from which it appears that an instrument could at that time be admitted to probate if it embodied the fixed and final testamentary intentions of the deceased, and the deceased did not have the opportunity of proceeding to give effect to that intention because of some act of God, such as death or supervening inability.

47 However, Young J did not suggest that the practice of the prerogative court before 1837 was reflected in s 18A of what was then the Wills, Probate and Administration Act 1898. In The Application of Kencalo , Powell J said that it was not the intention of the commissioners that the law should revert to the state in which it was prior to the passing of the Wills Act 1837.

48 Because I have concluded that the deceased did not intend the document to have a present operation, but intended it to operate as his will only upon its execution, I refuse the application for probate of that document.

49 The question then is whether the 2004 will should be admitted to probate. The original of the 2004 will has not been found. The plaintiff did not give any evidence that there had been any discussion between her and the deceased about the destruction of that document.

50 The absence of the original of the 2004 will does not indicate that the deceased intended the 2009 document to operate as his will prior to execution. Had that been his intention, one would have expected there to be some discussion with his wife about it. That is to say, had he destroyed that document intending to revoke it because he intended the 2009 document to be presently operative, one would expect there to have been discussion between him and his wife about it.

51 It having been established that in 2007 the deceased had possession of the original of the 2004 will, the absence of the original raises the presumption that the 2004 will was destroyed with the intention of its being revoked. However, the presumption is a presumption of fact which, in the circumstances of this case, is very slight.

52 In Whiteley v Clune (No 2); the Estate of Brett Whiteley (Supreme Court of New South Wales, Powell J, 13 May 1993, unreported) Powell J said:

"... where the Will makes a careful, and complete, disposition of the testator's property,and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist ... "

53 There would have been no need for the deceased to have revoked the 2004 will by destruction if he had intended the 2009 will to be immediately operative, because the latter document contained a revocation clause.

54 Given the meticulous provisions made in both the 2004 will and the 2009 document, it is highly improbable that the deceased would have intended to have left no will. In my view, the presumption against revocation has been rebutted, and the 2004 will should be admitted to probate.

55 The plaintiff's summons does not include an alternative claim for probate of the 2004 will. The other named executor in 2004 will, Mr Littlejohn, has not applied for probate and has not appeared in these proceedings, although I am informed that he is aware the proceedings are on foot.

56 Notices of intention to apply for probate of the 2004 will have not been advertised, but Mr Knowles is correct in submitting that all persons with a relevant interest in the matter have been notified, and that the only person who would be adversely affected by the admission of the 2004 will to probate, rather than by the deceased's estate being left on an intestacy, is the plaintiff herself.

57 In these circumstances, I think it appropriate, the question of revocation of the 2004 will having been litigated, to make a grant of probate of that document in solemn form. I will remit the proceedings to the Registrar to complete the grant, and also reserve leave pursuant to s 41 of the Probate and Administration Act for Mr Littlejohn to come in and apply for probate if he so chooses.

58 I make the following orders:

1. Order that the claims for relief in the summons filed on 24 September 2010 be dismissed;
2. Order that probate in solemn form of the copy of the will of the late Bruce William Crewes dated 9 July 2004 be granted to the plaintiff;
3. Reserve leave pursuant to s 41 of the Probate and Administration Act 1898, for any other person named as executor in the will to come in and apply for probate at some future date;
4. Refer the proceedings to the registrar to complete the grant.

[Parties addressed on costs.]

59 Costs are in the discretion of the court. Pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005, the court is to order that the costs follow the event, unless it appears to the court that some other order should be made as to the whole or any part of the costs.

60 The defendant does not submit that the plaintiff should pay the defendant's costs of the action. However, the defendant does submit that there should be no order as to the plaintiff's costs.

61 It is recognized that exceptions to the general rule, that costs follow the event, can apply in probate actions. If the testator has been the cause of the litigation, then costs of all parties may come from the estate.

62 In Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698, Powell J recognized a further exception, that if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them (at 709).

63 This was referred to with approval by the Court of Appeal in Shorten v Shorten (No 2) [2003] NSWCA 60. Those cases concerned testamentary capacity.

64 In Public Trustee v New South Wales Cancer Council [2002] NSWSC 220, a case concerning the admission of a document as an informal will under s 18A, Einstein J said that where the testator had made the informal document, the case could be treated as one in which the testator was the cause of the litigation. His Honour ordered that the costs of all parties be paid out of the estate.

65 That approach was followed by Young CJ in Eq (as his Honour then was) in Macey v Finch, which was a case more akin to the present. Subject to adjustment to ensure there were not excessive costs recovered by reason of the separate representation of persons who had the same interest, his Honour ordered that the costs be paid out of the estate.

66 I observe that in Oreski v Ikac the unsuccessful plaintiff was left to bear her own costs of the action, but there the plaintiff's case was characterised as being hopeless from a point that certain evidence became available to the plaintiff.

67 As Mr Knowles submits, the present application cannot be characterised in that way. The plaintiff had the support of first instance decisions of the Supreme Court of Western Australia and to a certain extent the Supreme Court of Victoria. Moreover, on an application to admit the 2004 will to probate, the court would, in any event, have had to consider the issues of revocation and the issues concerning the 2009 document that were litigated. Thus, the fact that the plaintiff sought probate of the 2009 will has not in any material way increased the costs that would have had to be incurred in any event.

68 In these circumstances, I consider that I ought to follow the approach taken by the then Chief Judge in Equity in Macey v Finch . In my view, the costs of both the plaintiff and the defendant should be paid out of the estate.

69 The plaintiff seeks her costs on the indemnity basis. Given that she propounded a document that would have given her a greater share of the estate, but was unsuccessful, I do not consider that it would be appropriate that she have her costs other than on the ordinary basis.

70 I order that the costs of both the plaintiff and the defendant be paid out of the estate on the ordinary basis.