Background
Philip Jeffrey Beaumont Smith sought probate of Wilma Annette Pusterla’s 12 October 2023 will. In the principal judgment, the Court refused probate because Mr Smith had not proved that the deceased knew and approved the will’s contents, given 13 suspicious circumstances surrounding its execution.
The charitable defendants had also alleged lack of testamentary capacity and undue influence or control by Mr Smith, but those alternative contentions failed. The costs judgment concerned the consequences of the failed probate application.
The Court’s Holding
Williams J ordered Mr Smith to pay the defendants’ costs on the ordinary basis through 5 September 2025, and on an indemnity basis from 6 September 2025. Although the circumstances reasonably warranted investigation of the will, they did not justify departing from the ordinary rule that costs follow the event because Mr Smith’s conduct generated or contributed to several of those circumstances.
The defendants had made a valid offer of compromise that was more favourable to Mr Smith than the result he obtained. The Court rejected Mr Smith’s arguments for avoiding indemnity costs: the evidence showed his own role in the events leading to execution of the will, and he had not brought a claim to rectify the will under s 27 of the Succession Act 2006 (NSW).
Key Takeaways
- Suspicious circumstances may justify investigation of a will, but do not necessarily displace the usual costs-follow-the-event rule.
- A party whose conduct creates the suspicious circumstances may still be ordered to pay the successful parties’ costs.
- A valid, more favourable offer of compromise triggered indemnity costs after its rejection.
Why It Matters
The decision illustrates that probate-costs discretion is fact-specific. A failed applicant cannot rely on the need to investigate a will where the applicant materially caused the circumstances requiring that investigation.
It also reinforces the costs risk of rejecting a formal compromise offer in probate litigation, particularly once pleadings and substantive evidence have been completed.