Costs and probate litigation

The Court awards a successful party in litigation the “usual order as to costs” which includes the costs incurred preparing for litigation with the unsuccessful party paying the costs of the unsuccessful litigation. However, unless otherwise provided for by an Act or the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) costs are at the Court’s discretion

Importantly modern civil procedure mandates that the Court’s discretion be exercised with a focus on the quick, cheap and efficient resolution of the issues in dispute.

Probate litigation

Where the testator is not the cause of the litigation, but circumstances exist that reasonably call for an investigation, the Court has the discretion to order the unsuccessful party’s costs paid from the estate. If the unsuccessful party has not acted reasonably, then the costs will usually follow the event – the unsuccessful party will pay costs.

Where the litigation concerns probate as a result of how the testator made their testamentary intentions know costs are usually paid out of the estate. If the litigation is adversarial, it is common for the Court to order that the unsuccessful party pay the other party’s costs – costs follow the event.

The usual rules relating to probate litigation are founded on public interest ensuring that parties;

  • do not admit doubtful wills to prove lightly because of the cost of opposing them and,
  • won’t commence ‘fruitless litigation’  believing that their costs will be paid by others.


Marlene Gyss (‘the deceased’) died on 14 February 2021, aged 82 years survived by her three children: Alan(‘the plaintiff’), Darren(‘the defendant’) and Lynda(‘Lynda’).

The deceased’s estate is valued at approximately $1,350,000, comprising an unredeemed nursing home bond of $600,000 and a term deposit of  $750,000.

The deceased executed two wills:

  • A last will dated 12 November 2018 (‘the 2018 Will’) appointed the plaintiff and the defendant as the executors of her estate. Left $100,000 to each of the defendant and Lynda, and the residuary estate to her children equally.
  • Her penultimate will dated 9 October 2017 (‘the 2017 Will’) appoints the defendant as sole executor of her estate and divides her estate equally between the plaintiff, the defendant and Lynda.

Under the 2018 Will the plaintiff would receive $100,000 less than his siblings.

A grant of probate has not been obtained for either the 2018 will or the 2017 will.

Following the death of the deceased, the plaintiff, the defendant and Lynda disagree with the administration of the estate, leading to Court proceedings.

The matter

In Re Gyss [2022] VSC 689 the plaintiff submitted that the 2018 Will was invalid as the deceased either

  • lacked testamentary capacity, or
  • was under duress or was unduly influenced.

The plaintiff also foreshadowed a family provision claim under Part IV of the Act.

On 13 April 2022, the plaintiff sought orders under s 15 of the Administration and Probate Act 1958;

  • that the defendant show cause as to why he should not either prove the 2018 Will or renounce his position as a co-executor.
  • Alternatively, the defendant be passed over as executor of the 2018 Will and either the plaintiff or an independent person be entitled to prove the 2018 will.

The proper course in circumstances where one of two executors dispute the validity of a Will is to allow one executor to make an application to prove said will, whereupon the other executor may then dispute the validity of the Will.

The decision

The Court held that from at least 4 July 2022, when the solicitors for the defendant indicated their client – in line with their previously advertised intention – would proceed to seek a grant of probate of the 2018 will there was no proper reason for the plaintiff to pursue the proceeding and it should have been discontinued.

In the circumstances the Court believed, it would have been consistent with the overarching obligations of the plaintiff and his solicitors to use reasonable endeavours to

  • resolve the dispute,
  • narrow the issues,
  • ensure that costs were reasonable and proportionate and
  • minimise delay

In pursuing the matter to a hearing, the plaintiff caused the defendant to incur unnecessary costs.

The Court determined that the plaintiff ought to renounce his right to prove the 2018 will and the defendant ought to be entitled to prove the 2018 will, subject to the plaintiff’s right to challenge its validity or make a family provision claim.

Additionally, the Court permitted the defendant to uplift the original copy of the 2018 will from the Registrar of Probates to make an application for probate and that the proceeding otherwise be dismissed.


The Court concluded the plaintiff’s application was misconceived and was ultimately unsuccessful; as the proceeding does not fall within a class of case where costs should be paid out of the estate the costs should follow the event.


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