Background
Adam Jamie Watkins, the personal representative of Hendrik Philippus Berend Drent’s estate, applied to remove a caveat lodged by Hendrikus Borcherdt and to admit the deceased’s 21 March 2023 will to probate. On 11 September 2026, the Court determined the substantive application, ordering removal of the caveat and permitting probate.
This decision addressed the consequential orders, including costs and an undertaking concerning estate property at Witta. Mr Borcherdt sought personal costs orders and other relief against Mr Watkins, while Mr Watkins sought his costs as the successful applicant.
The Court’s Holding
Freeburn J ordered that the caveat be set aside under r 629(2) of the Uniform Civil Procedure Rules 1999 (Qld), subject to the Registrar’s requirements the 2023 will be admitted to probate, and Mr Borcherdt pay Mr Watkins’ costs of the application. Mr Watkins was wholly successful, so the ordinary rule under r 681—that costs follow the event—applied.
The Court identified three reasons supporting that result: Mr Borcherdt had been alerted early to the standing issue on which he failed; much of his opposition rested on rumour and hearsay rather than evidence; and his submissions raised irrelevant matters. The Court rejected his allegations of fiduciary misconduct by Mr Watkins and held that his requests for further relief were not properly before it. It accepted Mr Watkins’ undertaking not to deal with the Witta property, except to transmit title as personal representative, until after 4 pm on 12 October 2026.
Key Takeaways
- A successful application to remove a probate caveat will ordinarily attract costs under r 681.
- Unsupported hearsay, irrelevant submissions, and unsubstantiated allegations will not justify departing from the usual costs rule.
- Further claims for injunctions or other relief must be brought through a proper separate application.
Why It Matters
The decision illustrates the costs consequences for a person opposing probate without adequate standing or evidentiary support. It also confirms that costs submissions cannot be used to introduce new substantive claims against an executor or personal representative.
The undertaking preserved a short period in which Mr Borcherdt could seek interim relief in his separate proceeding, without preventing probate from proceeding.