Costs of the parties in a recent probate litigation case1 from the South Australian Supreme Court were ordered to be paid from the deceased’s estate. Following the trial Gray J gave reasons for making that costs order.2
For will rectification type cases in South Australia, which this was, Gray J said it was the usual practice for the parties’ costs to be paid out of the estate unless the solicitor was at fault. In that case, costs are paid by the solicitor.2
Generally, in litigation involving a deceased estate in probate matters, many are of the view that costs are paid out of the deceased’s estate.
However this may not always be so, as it depends on the circumstances of each case. When might costs not be paid from the estate?
Some understanding as to how costs work in probate litigation can be gleaned from the passage Gray J cited from an earlier case3 in which the rules relating to costs were summarised by Angas Parsons J:
1. If the litigation results through the fault of the testator or those interested in the residue the costs may properly be paid out of the estate.
2. If there be sufficient and reasonable ground looking to the knowledge and means of knowledge of the opposing party to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.
3. Unless the circumstances of the case bring it within one of the foregoing exceptions, the general rule that costs follow the event ought to prevail.
“Costs follow the event”
Costs follow the event means that the successful party to the litigation, or the winner, is entitled to have their costs of bringing the action paid for by the losing party. This is the general rule and is subject to the Court’s discretion, Court rules and the circumstances of the case.
Costs orders and conduct of the parties
In making costs orders Courts take into account the conduct of the litigants towards each other in regard to their efforts in resolving their differences before hearing.
In a case in the New South Wales Supreme Court4 to resolve a dispute between sibling executors the Court said it was possible to determine whether one or other of the parties had acted so unreasonably that the other should have costs.
Further, the Court said it was “entitled to look not only at the period of litigation but at pre-litigation conduct.” And it did so.
Information on costs in estates matters can be found in the South Australian Law Handbook, published online by the Legal Services Commission of South Australia.
More on costs when contesting a will for family provision here. In New South Wales it is not always automatic that costs of challenging a will for more provision will be paid out of the deceased’s estate.
- Kerr v Kerr  SASC 199
- Kerr v Kerr (No 2)  SASC 24
- Public Trustee v Hall  SASC 252, at 253.
- Walker v Walker; the Estate of N J Walker  NSWSC 92
Updated 19 May 2022