Jageurs v Downing
The recent costs decision in the matter of Jageurs v Downing (No 2) provides a timely warning to recalcitrant executors.
Joseph Jageurs died in September 2010, aged 93. He was survived by his four adult children, Michael, Patricia, John and Annette. He left a will dated 5 April 2007 (‘the 2007 will’) naming Michael as his executor. There was also an informal document, dated 20 May 2010, that Michael submitted was intended by the deceased to be a codicil to the 2007 will.
The informal document was written by the deceased on a page from a notepad. The deceased signed the document and his signature was witnessed by one of Michael’s employees. The deceased’s handwriting in the informal document was almost illegible, but it purported to give John part of one of the deceased’s properties in Balwyn.
In November 2014, more than four years after the death of his father, Michael filed his application for probate of both the 2007 will and the informal document. For a variety of reasons, McMillan J was not satisfied that the informal document was intended by the deceased to be a codicil to the 2007 will. Accordingly, Her Honour dismissed the plaintiff’s application.
McMillan J noted that the usual order as to costs is that a successful party in litigation is entitled to costs and the unsuccessful party bears the liability for the costs of the unsuccessful litigation. However in probate litigation, such as a hearing to determine whether an informal will should be admitted to probate, the Court generally applies the usual rule as to costs in probate proceedings. That rule states that where the litigation has been caused, or contributed to, by the way in which a testator made his or her informal will or codicil, costs are usually paid out of the testator’s estate.
After considering the submissions of the parties, McMillan J concluded that the application to prove the informal codicil was not attributable to the deceased and that in the circumstances, it was not proper or appropriate for Michael to have made the application. In reaching this conclusion Her Honour noted that Michael had full knowledge of the factors that ultimately led to the application being dismissed. Those factors included the following:
- there was no evidence that the deceased intended the informal document to be a codicil to the 2007 will;
- the informal document purported to devise property that the deceased was unable to devise;
- Michael, with the support of John, brought the application for their own significant benefit and to the significant detriment of their sister Patricia;
- Michael failed to make proper discovery of the deceased’s solicitor’s file; and
- both Michael and John were found not to be credible witnesses and there was an inference of influence by them over the deceased.
McMillan J ordered that Patricia’s costs of defending Michael’s application for probate of the informal document should be paid from Michael and John’s share of the estate, on an indemnity basis. Her Honour allowed Michael his costs of the application, however those costs were also to come from his and John’s share of the Estate. Effectively, Her Honour ordered that the shares of the estate due to Patricia and Annette be quarantined from the costs orders.
Because of Michael’s delay in applying for probate of the 2007 will, Patricia had brought a related proceeding seeking orders that Michael either make an application for probate or renounce his right as executor to do so. McMillan J decided that Patricia had acted reasonably in bringing her related proceeding as it was made more than 3 years after the death of her father. Her Honour ordered that Michael should pay Patricia’s costs of the related proceeding on an indemnity basis personally, rather than from the estate.
This matter represents the new landscape of costs orders in the probate jurisdiction of the Supreme Court of Victoria. Executors can no longer expect that their costs will be borne by the estate in unsuccessful probate proceedings– especially where the executor has a personal interest in the outcome of those proceedings.
  VSC 509 (25 September 2015).