PARTIES:					IN THE MATTER of
						THE ESTATE OF THE LATE
						DONALD HAROLD BONSON

TITLE OF COURT:			SUPREME COURT (NT)

JURISDICTION:				SUPREME COURT

FILE NO:					22 of 1994

DELIVERED:				Darwin 29 June 1995

HEARING DATES:				24 April 1995

JUDGMENT OF:				MARTIN CJ.

CATCHWORDS:

Succession - Wills, probate and administration - Probate and letters of administration - Costs - Ordinary rule - Costs follow the event - Exceptions - Reasonable grounds for opposition to the will - Question of testators capacity - Costs of caveator -

	Herbert Brothers Deceased (1990) 101 FLR 279, applied.
	Spiers v English [1907] P 122, considered.
	Dwyer v Vindin (1906) 4 CLR 216, applied.
	Mitchel v Gard (1863) 164 ER 1280, considered.

REPRESENTATION:

	Counsel: 

		Plaintiff: 		Ms J Kelly
		Defendant/Caveator: Mr J Waters

Judgment category classification: C
Judgment ID Number: mar95015
Number of pages: 8

mar95015

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA PROBATE JURISDICTION

No. 22 of 1994

						IN THE MATTER of

						THE ESTATE of the Late
						DONALD HAROLD BONSON

CORAM:   MARTIN CJ.

	REASONS FOR JUDGMENT

	(Delivered 29 June 1995)

		In this matter I ruled over objections raised by a caveator, John Gilbert Bonson, that probate be granted of the will of the deceased, his father, which was executed on 3 June 1993. The question now is what order should be made as to the costs of the proceedings.

		The express grounds for the caveat were that the caveator was a beneficiary of an earlier will and that in contention, and because he was concerned that the testator may have lacked testamentary capacity at the time of the making of a later will. The earlier will, executed in 1992, left the testator's house in Darwin to his wife and the caveator as joint tenants.  Contrary to expectations, Mrs Bonson senior died earlier than the testator and thereafter he made the new will by which he left the whole of his estate to all of his twelve children.  
		Apart from some personal observations as to changes in the conduct and physical activities of the testator over a period of about 12 months prior to the date of his last will, there was no evidence in the caveator's case at trial to justify a finding that the testator lacked testamentary capacity.  There was evidence that he may have suffered diminution in some mental faculties due to a progressive form of dementia, but not in respect of any faculty relevant to the issues in the proceeding.  The testator's general practitioner Dr Welsh had written a certificate when the testator saw him on 26 May stating that the testator "was examined by me today and is of sound mind to alter his will".  He later resiled from that position, but as early as November 1994 a report, prepared by him and addressed to the Public Trustee was in the hands of the caveator.  In that report the doctor said that he did not set aside the proper time to give his observations as to the testator's mental health proper thought in May 1993 and to properly assess him in the light of what was being asked.  He concluded: "I doubt that Mr Bonson was of sound mind to make major changes to his will at the time of May 1993.  However, I have no experience in making such difficult judgments".  

		From about the middle of November 1994 the caveator had the benefit of the affidavits of the attesting witnesses to the testator's last will, which not only deposed to formal matters of execution, but as to the testator's apparent state of mind and understanding of what he was doing at the time that he executed it.  There was nothing in that material which would indicate that the testator was lacking in testamentary capacity at the relevant time.  The attesting witnesses were not called for cross-examination upon their affidavits.  One of them, the Public Trustee, Mr Flynn, had had considerable experience in such matters and had known the testator for about thirty years.

		Further information obtained from doctors not long prior to the hearing by the caveator did nothing to lend weight to his case that the testator lacked that capacity.  There was evidence that he may have suffered diminution in some mental faculties, but not in respect of any which are relevant to the issues in the case.  The caveator, nevertheless, persisted with his opposition to the grant of probate even when the medical evidence put together with a view to supporting his case failed to do so.  

		At trial, some suggestions were raised that other children of the deceased had exercised undue influence over him. Apart from the fact that was not a ground put forward in the caveat, it could only be regarded as a last ditch effort to try and raise an issue which may have some influence upon the Court.  It was quite without foundation.  On the other hand, some other beneficiaries sought to raise a suggestion that the deceased changed his will because the caveator did things which caused the testator to be antagonistic towards him.  There was no substance in that either.  There was no credible evidence to support either side in relation to those malign suggestions, but in truth they did not occupy much of the hearings.
		In short, there were some matters arising from the caveator's observations of the testator over the period prior to the execution of the will, and taking into account the substantial change made by the deceased to his testamentary disposition, which reasonably called for an investigation.  The reasons were, however, substantially diminished when the evidence of the Public Trustee was filed and as the medical evidence was obtained.  The matter should not have gone to trial.  Perhaps it was the late flurry of affidavits, filed only by leave and much later than the Court had directed, that meant that inadequate opportunity was available to pay attention to the real issues.  Careful and objective examination of what was available by way of evidence to support the caveator's claim would have demonstrated its weakness.  I was confident in the result as soon as the trial finished and gave my decision accordingly, though reserving reasons until later.

		The law as to costs in probate matters have been settled so far as this jurisdiction is concerned in the Court of Appeal in the matter of Herbert Brothers Deceased (1990) 101 FLR 279.  The common law as developed elsewhere has been adopted here.  The ordinary rule is that in the exercise of a general discretion in probate actions, as in other actions, costs follow the event, but there are exceptions.  The first which might apply in this case is where the circumstances afford reasonable grounds for opposition to the will, in which case it is usual to order that the costs of the party contesting the will come out of the estate. Kearney J., at p305, adopted the guidance provided in Spiers v English [1907] P 122, in the words of Sir Gorell Barnes P. at 123:

		"In deciding questions of costs [in probate actions] one has to go back to the principles which govern cases of this kind.  One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate.  Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the court acts, costs would not according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event.  Therefore, in each case where an application is made, the court has to consider whether the facts warrant either of those principles being brought into operation."

And see the other cases referred to by his Honour in his very detailed judgment.

		It can not be said that in this case the testator was really the cause of the litigation nor that that lay at the door of the beneficiaries, other than the caveator.  However, the circumstances leading up to the making of the contested will did lead reasonably to an investigation.  There were indications from the testator which could well have caused the caveator to reasonably question his testamentary capacity.  It was not in the interests of the other beneficiaries to do so.  The testator had lived with the caveator for much of the time prior to the execution of the contested will.  The new will constituted a substantial departure from the testator's original intentions, although there had been a significant event in the meantime, the death of the testator's wife.  But that does not conclude the matter.  Kearney J. at p314 draws attention to the decision of the High Court in Dwyer v Vindin (1906) 4 CLR 216.  His Honour extracted from the judgment of Griffith CJ. at p218:

		"The only material point, therefore, is that the learned judge ordered the defendant to pay the costs occasioned by his unsuccessful opposition to the will.  There is no doubt as to the general rule that in a case of this sort a person interested is entitled to raise this defence, and does not by doing so incur any risk of being ordered to pay the costs if he is unsuccessful.  That is not disputed.  But the rule is subject to this exception, that though as a general rule that principle is to be applied, there may be circumstances that would make it unreasonable to raise such a defence; if he knows, for instance, that although the will is prima facie invalid, on the ground of the suspicious circumstances surrounding its execution, there are facts which remove this objection.  In this case the learned Judges, while recognising the general rule, thought that the defendant by his own conduct had deprived himself of the right to take advantage of the rule.  That is a question of fact ....".

		Those remarks can be applied, by analogy, to this matter.  Here, there were reasonable grounds to suspect that the testator was not possessed of sound mind, memory and understanding at the time of the execution of the will.  It was not unreasonable for the caveator to raise the issue in the caveat.  For reasons already given, however, he ought to have recognised prior to trial that there was no substance in his objection and he ought not to have pursued it once he had the benefit of the uncontested evidence of the attesting witnesses which supported the will, and the medical evidence which did not cast doubt upon the testator's testamentary capacity. 

		In Herbert Bros at p320 I expressed myself as much attracted to the observation of Sir J P Wilde in Mitchel v Gard (1863) 164 ER 1280 commencing at 1281-2:

		"It is of high public importance that doubtful wills should not pass easily into proof by reason of the cost of opposing them.  It is of equal importance that parties should not be tempted to fruitless litigation by the knowledge that their costs will be defrayed by others.  These opposite reasons appear to have alternatively swayed the decisions to be found in the books.  It is the desire of the court to keep both in view, while yielding to neither, and it is in this spirit that the above rules have recommended themselves for adoption."		

		This is a case in which an exception to the general rule ought to be applied.  Investigation of the testator's testamentary capacity concluded when Dr Burrows' report of 3 March was supplied to the representatives of the caveator on 7 March 1995.  In the light of what was then known concerning that issue, the caveator should have withdrawn the caveat and ceased opposition to the grant of probate.  He should be allowed his costs up until that stage, but no later.

		I make the following orders:

1.	That the costs of Public Trustee of the proceedings be paid out of the estate of the testator on an indemnity basis.

2.	That the costs of the caveator of the proceedings up to 10 March 1995, but not including any costs of and incidental to the hearing, be paid out of the estate of the deceased on a standard basis.

3.	That the costs of Public Trustee of and incidental to the hearing be paid by the caveator on the standard basis.