Cabport Pty Ltd v Marinchek

Probate proceedings

1. On 19 February 2019, Sonia, in her capacity as executrix, filed a Summons in this Court for probate in relation to the Will (Probate proceedings).
2. On 28 February 2019, Erica sent Sonia a text message which read, "I told Dad to leave me off his will".
3. On 6 March 2019, probate in common form of the Will was granted to Sonia. The Inventory of Property admitted to probate disclosed an estate valued at $861,790.80, comprising the family home at Smithfield West with an estimated value of $800,000, savings in bank accounts of $58,790.80 and personal property with an estimated value of $3000.
4. On 18 March 2019, Erica executed a document entitled "Deed of disclaimer of interest by beneficiary" (Deed of Disclaimer) that relevantly provided: "OPERATIVE PROVISIONS 1 Disclaimer of estate or interest A. I, Erica Anne Magri, am named as a beneficiary under the Will of Alberto Magri, the Deceased. B. I disclaim any benefits or interest real or personal in the Will and estate of the Deceased to which I may be entitled pursuant to the Will of the Deceased unconditionally. C. I make this decision understanding it mean that I will have no interest or benefits past, present or future in or from the Estate and pursuant to the Will whatsoever. D. As a result of my disclaimer I understand that any benefits under the Will are to be distributed between the beneficiaries who have not disclaimed their interests and that I will have no say in matters related to their inheritance nor any claim against them or the Estate. 2 Release of executor or trustee A. The Disclaiming Beneficiary, Erica Anne Magri releases the executor and trustee of the Estate of the Deceased from and against all actions, proceedings, claims and demands arising out of or from distribution of the estate as altered by this Deed."
5. Angela gives evidence that she was told by Erica in April 2019 that she had disclaimed her interest in the deceased's estate as she did not want her son or his father to receive any money from the estate or for it to be "eaten up by the court system", referring to other legal proceedings she was involved in. Sonia also gives evidence that she asked Erica in April, June and July 2019 to reconsider the Deed of Disclaimer and take "her share when the time comes" but each time Erica indicated that she did not want to do so.
6. On or about 17 April 2019, Sonia arranged for the Smithfield property to be transferred to herself as executrix by way of transmission application.

These proceedings

1. On 23 August 2019, Erica commenced these proceedings against Sonia, Terese, Angela and Anthony (together, the Defendants) by filing a Summons in which she claimed that the Will was not the last will of the deceased and was a forgery, the Deed of Disclaimer was made under false pretences and sought relief that the probate granted to Sonia on 6 March 2019 be revoked, that Erica be declared a beneficiary under the Will and the Deed of Disclaimer be deemed null and void.
2. It is not necessary to set out the full procedural history of the proceedings, the key events are set out below. However, I should record that Erica has been self-represented for most of the time since the proceedings were commenced.
3. On 28 February 2020, Erica filed a Statement of Claim. Her claims are now set out in the First Amended Statement of Claim that was filed on 13 May 2021 (FASOC). In summary, Erica: 1. claims that the grant of probate in common form to Sonia on 6 March 2019 should be revoked as there are issues concerning the validity of the Will and/or seeks an order that the deceased's estate be determined under intestacy legislation; 2. challenges the validity of the Deed of Disclaimer and seeks an order rescinding or voiding it; 3. alleges that Sonia has not properly accounted for her administration of the deceased's estate, has misappropriated funds from the deceased's estate for personal expenses, sold the deceased's residence in Smithfield without authority and seeks an order that the value of the deceased's estate be determined by reliance on accurate, up-to-date accounts; and 4. says that she should be provided with further provision from the deceased's estate.
4. On 20 March 2020, Sonia filed a cross claim (Cross Claim) seeking an order that the Will be admitted for Probate in solemn form, that Probate of the Will be granted to Sonia and for the proceedings to be referred to the Probate Registrar to complete the grant. That day, the Defendants' solicitors served Robert and Marie (who were not parties to the proceedings) a notice of the proceedings that included copies of the Statement of Claim, the Will and Cross Claim.
5. On 31 March 2020, Erica filed a "Reply Defence" to the Cross Claim that asserts, amongst other things, that the Will needs to be proven in Solemn Form, that she is not a "Forensic Analysis" and was not present at the "Post Office" (at [2B] and [2C]). It also assert that the Defendants do not want the Deed of Disclaimer and Deed of Family Arrangement retracted or invalidated (at [2G]) and takes issue with the form of Cross Claim and the Defendants' responses to her Statement of Claim (which, at that time, was subject to a strike out application) (at [2E], [2F], [2H] and [2I]).
6. On 1 May 2020, Hallen J made orders, notations and directions that, amongst other things, notes that: 1. the parties agree that the validity of the Will is the subject of dispute between them: at [1]; and 2. "the plaintiff [Erica] would be content if the estate, after the payment of debts, funeral and testamentary expenses, is shared equally between her mother and each of her children, with the result that each would receive one seventh of the deceased's net estate": at [3].
7. On 16 December 2020, the Smithfield property was sold at auction for $740,000. A valuation obtained in relation to that property in late November 2020 had disclosed a value of $720,000. Settlement of the sale was completed on 27 January 2021 and $721,601.17 was deposited into the trust account of Sonia's solicitors (as solicitors for the executrix).
8. On 1 April 2021, a draft "Deed of Family Arrangement" was sent by the Defendants' solicitor to the solicitor who was then on the record for Erica, Joanne Butler, on a "Without Prejudice save as to costs" basis (Exhibit E). That Deed relevantly included the following provisions: "3. Erica agrees that she will not make any further application to revoke the Grant of Probate of the Deceased's Will which has been made to Sonia. 4. In lieu of the provisions of the Deceased's Will, the parties agree that the Deceased's estate in the amount of $746,278.75 shall be distributed as follows: 4.1 To Erica the sum of $99,826.49 4.2 To Sonia the sum of $99,826.49 4.3 To Robert the sum of $99,826.49 4.4 To Anthony the sum of $99,826.49 4.5 To Terese the sum of $99,826.49 4.6 To Angela the sum of $99,826.49 4.7 To Marie the sum of $99,826.49 4.8 The balance of $47,493.34 to be paid for legal expenses… … 7. The proceedings shall be settled on terms to the following effect: a. An Order that probate in solemn form of the Will of the late Alberto Magri dated 20 August 2015, in solemn form, be granted to the defendant Sonia; b. An Order that the matter be remitted to the Registrar to complete the formalities of the Grant; c. An Order that the Summons and Statement of Claim be dismissed; d. An Order that all Notices of Motion filed in these proceedings be dismissed; e. Makes no Order as to Erica' costs to the intent that she bear her own costs of the proceedings and Cross Claim; and, f. Orders that Sonia's costs of the proceedings and Cross Claim, calculated on the indemnity basis, be paid out of the Deceased's estate, and limited to those costs as provided for in legal expenses."
9. The offer to enter into the Deed of Family Arrangement was not accepted by Erica or signed by her.
10. On 6 June 2021, Joanne Butler, served a notice of ceasing to act for Erica.
11. On 7 June 2021, the Defendants filed a Defence to the FASOC in which they deny allegations made against them and, in answer, say that: 1. since September 2019, they have informed Erica that they do not intend to rely on the Deed of Disclaimer and acknowledge that she is entitled to one seventh of the deceased's estate; and 2. the Will is valid, and Sonia is entitled to a grant of probate of the Will in solemn form.
12. On 9 September 2021, the Defendants' solicitors sent a letter to Erica advising that they did not intend to rely on the Deed of Disclaimer to the intent that all seven beneficiaries will receive one seventh of the deceased's estate (Affidavit of Philip Sim (Sim affidavit) of 21 September 2021 at Annexure A). The letter indicated that the Defendants' reserved the right to rely on the letter in support of an application that Erica pays the Defendants' costs of the proceedings on an indemnity basis and that Sonia (as executrix) be entitled to deduct the costs from Erica's one-seventh share in the deceased's estate.
13. That day, Erica sent a response in which she asserted that it was "not an offer of compromise, [but] … continuous of criminal behaviours" and, in response to the letter stated, "the answer is NO".
14. During the course of the proceedings, the parties have filed and served 47 affidavits.

The hearing: 27 - 30 June 2022

1. The proceedings were listed for hearing before me commencing on 27 June 2022 with an estimate of four days.
2. On 27 June 2022, Erica appeared in person, representing herself. Mr Armfield appeared as counsel for the Defendants. The hearing was adjourned by consent until 12.00 pm on 28 June 2022, following an application by Erica for an adjournment due to issues with the court book.
3. There was no appearance by Erica at the resumed hearing at 12.00pm on 28 June 2022. Nor did she appear at 2.00 pm on 29 June 2022, the time and day to which the hearing had been further adjourned due to Erica's non-appearance on 28 June 2022.
4. At 2.00 pm on 29 June 2022, the Defendants made an application for the case to proceed in Erica's absence. I granted that application and directed the Defendants' solicitors to notify Erica that the hearing would proceed at 10.00 am on 30 June 2022 irrespective of whether she attended the hearing that day: The Estate of Alberto Magri [2022] NSWSC 873 (First Judgment). These reasons assume familiarity with the First Judgment.
5. The Defendants' solicitor notified Erica that the proceedings had been adjourned until 10.00 am on 30 June 2022 and would proceed to hearing, and that the matter would be heard should she not attend. Also on 29 June 2022, my associate sent an email to Erica (copied to the Defendants' solicitors) that notified her of the orders made by the court that day and provided her with dial in and audio-visual link details so that she could attend the hearing on 30 June 2022 by telephone or Microsoft Teams if she was unable to attend the hearing in person.
6. At 10.00am on 30 June 2022, when the matter was called for hearing, there was no appearance by Erica in person, by telephone or via Microsoft Teams.

Issues for determination

1. In accordance with the orders made on 29 June 2022, the hearing proceeded in Erica's absence on 30 June 2022: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 29.7(2).
2. Rule 29.7 of the UCPR provides: 29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court - (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. (3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of - (a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and (b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs. (4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings. (5) Subrules (3) and (4) do not limit the court's powers under subrule (2).
3. A party is "absent" within the meaning of that rule if they have adequate notice of the hearing date and yet fail to attend (personally or by a representative) or to provide the Court with an apparently credible explanation for their non-attendance: Watson v Hannover Life Re of Australasia Ltd [2018] NSWSC 877 at [43]; Ritchie's Uniform Civil Procedure NSW (2002, LexisNexis) at [29.7.2] (Ritchie's) citing Magjarraj v Asteron Life Limited [2009] NSWSC 1433.
4. Erica had received adequate notice of the hearing and yet failed to appear.
5. As a consequence of Erica's absence, the focus of the hearing was on Sonia's Cross Claim seeking a grant of probate in solemn form of the Will. Sonia accepted that she needed to prove the Will and respond to issues regarding the value of the deceased's estate in view of the claims raised by Erica's FASOC concerning the authenticity of the Will and Sonia's administration of the deceased's estate.
6. Thus, the first and primary issue for determination is whether Sonia has established that the validity of the Will and Probate should be granted in solemn form.
7. The other issues that arise concern the value of the deceased's estate and related disputes about accounting for estate expenses, whether the Court should dismiss Erica's claims as propounded in the FASOC, and what costs orders should be made.
8. In support of their claims, the Defendants read affidavits from Sonia Allan (Sonia affidavit) dated 20 March 2020, 12 June 2020, 11 January 2021, 7 June 2021 and 16 May 2022; Angela Malone dated 10 January 2021, 7 June 2021 and 19 May 2022; Terese Gaffney dated 11 January 2021, 5 June 2021, 17 May 2022 and 17 June 2022; Anthony Magri dated 12 January 2021, 7 June 2021 and 17 May 2022; Robert Magri dated 16 January 2021, 4 June 2021 and 17 May 2022; Marie Elizabeth Wales dated 5 June 2021; an affidavit from the attesting witness of the Will, Magdy Botros, sworn 23 September 2019; an affidavit of service of Alisa Green dated 3 April 2020; an affidavit of Dr John Albert Roberts dated 10 June 2022 and the documentary bundle annexed; and affidavits of Philip Sim, the solicitor for Sonia (in her capacity as executor), dated 8 February 2021, 21 September 2021 and 19 May 2022, his affidavit of service sworn 12 May 2022 and his affidavit of costs sworn 19 May 2022.
9. The Defendants also tendered and rely on the following: a folder containing a schedule of estate expenses and supporting receipts (Exhibit A); a schedule headed 'The Estate of the late Alberto Magri (deceased) Expenditure Summary For the period 01/12/2018 - 18/06/2020' (Exhibit B); a document dated 16 September 2016 titled 'Terms of settlement' (Exhibit C); a series of emails sent from the Defendants' solicitors to Erica during the period 29 June 2022 to 30 June 2022 that refer to the schedule of estate expenses (Exhibit D); an email sent on 1 April 2022 from the Defendants' solicitors to Erica's then solicitor, Joanne Butler, that attached a draft Deed of Family Arrangement and associated emails (Exhibit E); a letter dated 20 April 2022 from the Defendants' solicitors to Erica headed 'Without Prejudice Save As To Costs' (Exhibit F); an email sent on 21 April 2022 from Erica to the Defendant's solicitors that purports to respond to the first email in Exhibit F (Exhibit G).
10. At the hearing, Sonia gave evidence in person about matters relating to the Will, her administration and the value of the deceased's estate. Mr Sim also gave evidence in person about Exhibit A, which was prepared by him and his staff on instructions from Sonia, in her capacity as executrix (FYI T51/52).
11. On 1 July 2011, my chambers received from the Defendants' solicitors an amended 'Schedule of Estate Funds' that had been foreshadowed by Defendants' counsel would be sent and proposed Short Minutes of Order (which I have marked as Exhibit H).
12. It is unnecessary to refer, in any detail, the bulk of the evidence, or in a narrative and chronological form. The key aspects are set out above in the Background Facts section and in the following sections that deal with the issues for determination.

Cross Claim: Grant of probate in solemn form

1. An executor has an absolute right to seek probate in solemn form and is entitled to seek such a grant despite the existence of a grant in common form. A grant of probate in solemn form is an appropriate course where there is an issue as to the validity of the will or where the executor believes that the grant may be opposed by a person with an interest: G E Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) (Law of Succession) at [11.31] and [11.33] citing Re Levy (deceased) [1953] VLR 652 at 658.
2. In order to obtain probate in solemn form, a person who propounds a will has the legal, or persuasive, burden of satisfying the court that it is the will of the will-maker. The standard of proof is the balance of probabilities. The propounder of the will must show, on the balance of probabilities, that it is the last valid will of the will-maker: Robertson v Barker [2021] NSWSC 1682 at [454].
3. The applicable principles in respect of such a grant of probate were summarised by Powell J (as his Honour then was) in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704-706 as follows (omitting citations): "I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows: 1. the onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the court is bound to pronounce against the document; 2. this onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence; 3. the proponent's duty is, in the first place, discharged by establishing a prima facie case; 4. a prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the court judicially that the will propounded is the last will of a free and capable testator; 5. the first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; 6. where what is propounded as a will comprises more than one sheet of paper, it is not necessary that every sheet be signed, although it was, at one time, held that, for the prevention of fraud, the sheets must, at the time of execution, be attached in some way... although as time went by the degree of 'connection' insisted upon seems progressively to have been relaxed; if, however, the pages are authenticated beyond doubt there appears to be no reason why 'connection' at the time of execution need be insisted upon; 7. a testator's signature is sufficiently 'made' in the presence of the attesting witnesses if the signature was in fact made in the presence of witnesses who either saw, or had the opportunity to see, the testator writing, even though they did not actually see the signature itself; 8. a testator's signature is sufficiently 'acknowledged' in the presence of the attesting witnesses if, by word or gesture, the testator invites the witnesses to sign his will, or witness his signature and the witnesses either see, or have the opportunity of seeing, the testator's signature; 9. unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10. facts which may well cause suspicion to attach to a document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; … 11. where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator is, as a general rule, conclusive evidence that he knew and approved of its contents; 12. the locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow [(1870) LR 5 QB 549 at 565] in which case His Lordship said: "It is essential to the exercise of such a power (scil, testamentary power) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made." …. 14. a duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding; sanity is to be presumed until the contrary is shown; 15. facts which, if established, may well provide evidence to the contrary include: (a) the exclusion of persons naturally having a claim on the testator's bounty; (b) extreme age or sickness or alcoholism; 16. in relation to the former of these two matters, however, it is appropriate to record that, in the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker, the following passage appears: '… the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the Will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity.' 17. however, while extreme age or grave illness will call for vigilant scrutiny by the court, neither (even though the testator may be in extremis) is, of itself, conclusive evidence of incapacity; it will only be so if it appears that age, or illness, has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property…"
4. These principles have been referred to with approval in subsequent cases and the other relevant case law has been reviewed in detail by Hallen J, including in Robertson v Barker at [454]-[507].
5. In Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 (Kouvakas), Lindsay J observed, at [258], that a grant in solemn form is binding on the parties to a probate suit in which it is granted, on anyone of full capacity who has an interest in the suit, knows of the proceedings and chooses not to intervene, with the corollary being that a grant in solemn form will not bind a non-party who had not had notice and a right to intervene in them. At [249], His Honour stated: "A grant expressly issued "in solemn form" is a judicial statement that, on the Court's then assessment: (a) all persons interested in the making of a grant (and, particularly, those with an interest adverse to the making of a grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant; (b) on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and (c) an order for a grant in solemn form appropriately serves the due administration of justice."
6. In this case, I am satisfied that all persons interested in the making of a grant of probate in solemn form of the Will knows of the proceedings and have been given a fair opportunity to be heard. All but two of the beneficiaries under the Will are parties to these proceedings and Robert and Marie were notified of them (as referred at [20] above) and gave evidence in support of Sonia's claim for a grant of probate in solemn form. Erica did not make an appearance at the hearing on 30 June 2022. However, for the reasons set out in the First Judgment, I am satisfied that she was provided with a fair opportunity to be heard but chose not to do so.
7. In any event, in considering Sonia's application for a grant of probate in solemn form, I have had regard to the matters raised by Erica in the AFSOC and Defence to Cross Claim, where she pleads that that she cannot confirm whether the deceased executed "his last" Will on 20 August 2015 as she is not a forensic analyst and was not present at the Post Office at the time and that probate on 6 March 2019 was granted in respect of a copy of the alleged Will, and her written submissions (received in advance of the hearing) that a replacement will which is a "suspected false document" was filed at the Court, Erica has engaged the services of a Forensic Handwriting Expert to examine the alleged Will, Kevin Tran was not employed at the Post Office on 20 August 2015 such that he was not physically capable of signing the alleged will, and Sonia has not provided the 'original will' to the Court (Plaintiff's Submissions dated 3 June 2022 at [2], [9]-[11]).
8. Sonia submits that the Will should be admitted to probate in solemn form as it was validly executed and the evidence supports a finding that it is the last valid will of the deceased, who was a free and capable testator. I accept that submission.
9. Applying the legal principles outlined above to the evidence in this case, I am satisfied on the balance of probabilities that the Will propounded by Sonia is the last will of the deceased, a free and capable testator, and of the formal matters necessary for the grant of probate in solemn form.
10. The first step is establishing that the will was duly executed.
11. At the bottom of the Will, there is a signature next to "Testator", and signatures of attesting witnesses of Magdy Botros, J.P. 136821 Smithfield West L.P.O, and Kevin Tran.
12. Sonia, as the party propounding the Will, must call at least one of the attesting witnesses to prove due execution: I L Pardey & Ors v A W Pardey [2017] NSWSC 1413 at [6].
13. In my view, Mr Botros's affidavit proves that matter in respect of the Will and establishes a prima facie case that the Will was duly executed by the deceased. Mr Botros deposes that the Will was signed by the deceased in the presence of Mr Botros and Mr Tran and then, at the request of the deceased, the Will was attested and subscribed by them in the deceased's presence, that the signatures on the bottom of the page of the Will are his and that of Mr Tran, and that he is a Justice of the Peace and certified the Will as such in addition to his signature.
14. Mr Botros may not have given evidence in person at the hearing on 30 June 2022, but he had been served with a subpoena to attend and there is, in my view, no basis to doubt the veracity of his affidavit evidence and I accept it. Even if I were to assume that Mr Tran was not employed at the Smithfield Post Office at the time does not mean that he was incapable of being present that day and witnessing the Will.
15. While not determinative, there is also supporting evidence from Angela, Terese, Anthony and Robert confirming that the Will bears the signature of the deceased.
16. Further, the report from Justin Watts, a handwriting expert, that Erica served in the proceedings (tab 31 of the court book produced for the hearing) did not support her contentions. In the report, Mr Watts noted that the questioned document (the Will) he considered was a low resolution reproduction, there were limitations with it and about half of the specimen signatures (as they were dated around 2002), signature examinations of aged writers are particularly difficult, and even with a high resolution copy and contemporaneous specimen signatures, it was still possible that the result would be inconclusive.
17. There are no suspicious circumstances attaching to the preparation or execution of the Will. It follows, in my view, that the deceased's execution of the Will is sufficient evidence of his knowledge and approval of it.
18. I am also satisfied that the Will submitted in the Probate proceedings is the original Will. In my view, the evidence does not support Erica's assertion that it was a "false document" and not the original Will that was provided to the Court as part of the Probate proceedings.
19. The Probate proceedings file was made available to the Court for the hearing. It contains a document that is an original Will, with a handwritten notation marked "ORIGINAL" on the back. Sonia's evidence, which I accept unreservedly, also supports a finding that the Will is an original and not a false document. Her evidence about finding the Will is outlined at [6] and [7] above. She also gives evidence about conversations with the deceased before his death during which he told her that he had made a Will and to look in his trunk to find all the information she required after he died, the original Will was held in a safe deposit box at the Commonwealth Bank in Fairfield, and to collect the keys to the trunk at his Smithfield home. Angela also gives evidence that the deceased told her that his Will was stored in a safe deposit box at the Commonwealth Bank in Fairfield Heights.
20. The Will is rational on its face, providing as it does for the deceased's estate to be shared equally between his children and his ex-wife.
21. The dispositions under the Will also reflect statements made by the deceased to Angela, Terese, Anthony and Robert about how he intended to divide his estate, as referred to in their affidavit evidence (see, for example, the affidavit of Angela on 10 January 2021 at [3]-[5]; affidavit of Terese on 11 January 2021 at [2]-[3]; affidavit of Anthony on 12 January 2021 at [5] and [10]; and, affidavit of Robert on 16 January 2021 at [3] and [14]), and to Sonia. Sonia deposes that between about 2000 and 2015, she had at least 30 conversations with the deceased about his Will in which he always said something to the effect that everyone (which Sonia understood to refer to Marie and the deceased's children) should receive an equal share of his estate (Sonia affidavit of 20 March 2020). I am satisfied that the Will reflected the deceased's testamentary intentions.
22. The deceased may have been nearly 80 years old when he made the Will but there is no suggestion that he was feeble minded, had an illness that impacted his mental faculties or that he lacked testamentary capacity at the time the Will was made.
23. I am, therefore, satisfied that Sonia has established that the Will is the last valid will of the deceased, that it expressed the testamentary intentions of the deceased, that he understood what he was doing and its effect, and that the original Will was before the court in the Probate proceedings.
24. Thus, I conclude that the Will should be admitted to probate in solemn form and an order should be made that probate of the will be granted to Sonia. It follows, in my view, that the matter should be remitted to the Probate Registrar to complete the grant, and I will so order.

Value of the deceased's estate

1. The Defendants accept that it is appropriate for this Court to make findings regarding the value of the deceased's estate in the context where Erica has made claims in the FASOC and her submissions to the effect that Sonia has misappropriated funds from the deceased's estate, commingled estate assets and funds with her own personal finances and has not provided accurate and up-to-date accounts.
2. The Defendants rely on evidence from Sonia and Mr Sim to establish the value of the deceased's estate and how assets, costs and expenses have been accounted for as well as Exhibit A (folder containing the schedule of estate expense and receipts) and Exhibit H (specifically, the Schedule of Estate Funds).
3. As noted at [13] above, the Inventory of Property that was admitted to probate disclosed assets with an value of $861,790.80, which was largely based on an estimated value for the Smithfield property of $800,000
4. As noted at [23] above, on 16 December 2020, the Smithfield property was sold. The sale value realised at auction was $721,601.17 after payment of expenses (Sim affidavits of 8 February 2021 at [16] and 19 May 2022 at [6]).
5. Sonia gives evidence that, in addition to the Smithfield property, there was $60,813.05 held in the deceased's three bank accounts when he died, (Commonwealth Bank account xx72 and two Westpac accounts xx98 and xx38), and that his personal property (furniture, clothing and other personal effects) was of no value to the deceased's estate and she estimated that it would cost the estate between $5,000 and $12,000 to 'clear' that property (Sonia affidavit of 12 June 2020 at [11] and Annexure B).
6. Accordingly, as at December 2020 (after the Smithfield property was sold), the gross value of the deceased's estate was $787,021.11. This amount comprised the sale proceeds of the Smithfield property, $60,813.05 in bank accounts, an amount of $4,250.97 paid into the estate (for aged pension, interest) and interest on the estate funds of $355.92 (Exhibit H).
7. Sonia's evidence which I accept, is that she has carried out a number of tasks as executrix. Those tasks relevantly included making the funeral and burial arrangements, applying for probate, dealing with accounts and bills (such as the payment of rates and utilities in relation to the Smithfield property), undertaking maintenance and repair works on the Smithfield property prior to its sale on 16 December 2020 and disposing of the deceased's furniture and personal affects (Sonia affidavit of 12 June 2020 at [10] and Annexure A).
8. Sonia's and Mr Sim's affidavits detail the expenses incurred by the deceased's estate or that are claimed by way of reimbursement from the estate by Sonia, in addition to detailing the assets and income, by way of an accounting of the deceased's estate (Sonia affidavit of 12 June 2020 at [10]-[13] and Annexure B; Sim affidavits of 8 February 2021 and 19 May 2022).
9. Exhibit A consists of a schedule that itemises all estate expenses claimed on behalf of the deceased's estate, including those incurred post-19 May 2022. The schedule list 69 expenses totalling $31,205.68 that have paid by the estate, and 7 expenses totalling $1,260.97 [1] that Sonia has paid and for which she claims reimbursement. Mr Sim gave evidence at the hearing that the "Agree" and "Disagree" columns in the schedule identifies the expense items that Erica accepts and disputes, based on the schedule annexed to Erica's affidavit of 30 August 2021, which schedule identified her objections to Sonia's accounting information, and was received in electronic form on 27 June 2022, in accordance with directions made that day (First Judgment at [16]). Of the 69 expense items totalling $31,205.68, 19 items (totalling $19,896.96) are agreed, 43 (totalling $10,429.25) are contested, and 7 (totalling $879.47) are neither agreed nor contested, presumably as they relate to the period post 19 May 2022. Of the 7 expense items totalling $1260.97, one item ($27.25 for Coles cleaning products) is agreed, two (totalling $55.72) are contested, and three (totalling $1178) are neither agreed or contested.
10. The evidence discloses that Sonia has reimbursed $2,972.12 to the estate account (Sim affidavit of 19 May 2022 at [13]-[15]). That amount relates to four items listed in Exhibit A in the "Disagree" column, namely, item 1 [34] ($748.58 relating to IKEA items), item 1 [38] ($677 for Rugs from Bunnings), item 1 [50] ($1,146.31 of $1,174.29 for building insurance) and item 1 [59] ($399 for a lawnmower), as well as $1.23 of interest paid into the estate.
11. Thus, there are 51 estate expense items (paid or to be reimbursed to Sonia) that are in dispute or have not been agreed, which total $9,570.32. These expense items fall into the following three categories: expenses relating to the Probate application on 6 March 2020 and Sonia role as executrix (items 1 [4], [13]-[15], [18], [20], [22], [53]-[57], 2 [a] (in part), [b]-[d]); expenses that are characterised by Erica as of a personal nature which should be refunded, such as Silver Chain Services for ComPacks, a "sander", travel expenses for Sonia associated with the repair and preparation of the Smithfield property for sale (items 1 [6], [10], [35], [37]); and costs and expenses relating to the maintaining the utilities and cleaning and repairs to the Smithfield property (for example, items 1 [7]-[9], [11], [16], [19], [24]-[29], [32], [39], [41]-[44], [49], [51]-[52], [61], [63]-[69], 2 [e]-[f]).
12. Based on Sonia and Mr Sim's evidence (referred to at [79] above), the descriptions and supporting receipts relating to the disputed items (as contained in Exhibit A) and Sonia's evidence at the hearing that the items in Exhibit A that refer to "material for repair of bathroom" and other similarly named items all relate to the Smithfield property (T57.31-43), I accept Sonia's submission that the disputed expense items are all legitimate estate expenses that were properly incurred by the estate or Sonia, in her capacity as executrix, in administering the deceased's estate. It follows that I am satisfied that they are expenses that were appropriately paid for by the estate and/or should be reimbursed to Sonia, and that the accounting provided in relation to the expenses are not inaccurate or lacking in any material way.
13. Accordingly, the net value of the deceased's estate, after the payment of expenses (totalling $31,205.68) and the amount that has been returned by Sonia (of $2,972.12), is $758,787.55.
14. The estate has paid legal costs of $11,187.00 to Glass Goodwin (Sim affidavit of 19 May 2022 at [24]).
15. After deducting the estate related costs to be reimbursed to Sonia (of $1,260.97) from the estate funds held in trust as at 19 May 2022 (Sim affidavit of 19 May 2022 at [23]), the net value of the deceased's estate that is available for distribution is $746,339.58.
16. In addition, the Defendants' legal costs (incurred, but not yet paid, and estimated to the end of the hearing) totals $165,397.34 (Sim affidavit of 19 May 2022 at [24]-[27]).

FASOC: should Erica's claims be dismissed?

1. Rule 29.7(4) of the UCPR gives the Court a discretion to dismiss proceedings if, when the trial is called on, the defendant appears but the plaintiff does not. In exercising the discretion, the Court should have regard to the well-known obligations imposed by ss 56-60 of the Civil Procedure Act 2005 (NSW) (CPA), which make it clear that the Court is not required to indefinitely delay the hearing in the hope the plaintiff might appear: Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167 at [37] and [40].
2. If the plaintiff fails to appear, the defendant is entitled to judgment dismissing the claim, and may proceed to prove any counterclaim that has been made. The effect of this judgment is the same as if it were a judgment dismissing the action on the merits: Ritchie's at [29.7.15] and the cases cited therein.
3. I was satisfied when making the orders on 29 June 2022 that Erica had chosen to disengage from her claims that she had brought and that she had been afforded opportunities to appear and to be heard and had chosen not to do so. I was also satisfied that it was contrary to the interests of justice for the Court to vacate the hearing and adjourn the proceedings further, particularly as there were doubts in my mind as to whether Erica would be in a position to deal with the proceedings if the hearing was to proceed later in the year or early next year, and the interests of the Defendants.
4. As the hearing proceeded without Erica, she did not read any evidence in support of her claims in the FASOC. In my view, the result is that her FASOC should be dismissed.
5. It is, however, appropriate to record the following matters in relation to Erica's claims for relief in the FASOC.
6. First, and in relation to her claim for relief that Sonia prove the alleged will in solemn form (FASOC at [2B]), for the reasons outlined above, I am satisfied that Sonia had established that matter.
7. Second, I see no warrant for making an order invalidating the "Deed of Disclaimer" and the "Deed of Family Arrangement" (FASOC at [3C]) in circumstances where the evidence indicates that the Defendants have confirmed with Erica that they do not rely on the Deed of Disclaimer (referred to at [28] above) and the proposed Deed of Family Arrangement was not accepted or executed by Erica.
8. Erica also alleges that in March 2019, Sonia told Erica that the Deed of Disclaimer was 'just a precautionary document' and that Erica could 'still receive from the 'deceased's estate' as long as this is decided and communicated to Sonia… prior to the 'deceased's estate' being distributed' (Plaintiff's Chronology).
9. Third, I have seen no evidence on this application that would warrant an order revoking probate in common form based on Sonia having breached her fiduciary duties and trust in her role as executrix, or that evidence of the accounting provided by Sonia does not reflect a just and honest value of the deceased's estate: FASOC at [1A] and [8D]. I refer to my reasons set out above, that deal with the value of the deceased's estate and the disputes regarding expenses.
10. Fourth, and in relation to the claim that the Court should apply the equitable doctrine of promissory estoppel in this matter (FASOC at [9E]), this relief is based on pleadings that assert that the deceased had communicated to Erica that she could stay in the Smithfield house after he died and not have to move her personal belongings. Leaving to one side that the FASOC does not give particulars of the "communication", as indicated by the matters referred to at [5] above, there is a factual dispute about whether Erica was living at the Smithfield property with the deceased prior to his death or he was living alone.
11. Fifth, and in relation to the claim for family provision relief, namely, an order extending the time for making the claim and for further provision in a total amount of $381,774.10 (comprising a lump sum amount of $250,000 and estimated legal fees if the case goes to trial of $100,000) (FASOC at [12F] and [13G]), it is difficult to see how that claim could be sustained in the light of the concession Erica made to the Court on 1 March 2020, as described at [22(b)] above.
12. The Defendants contended at the hearing that no evidence was led by Erica explaining why the application was made one year and five months out of time or as to her financial and material circumstances. They also submitted that her claim for further provision is weak. Based on the evidence read by the Defendants at the hearing, I consider there to be some force in that last submission. This is particularly as the deceased's estate is relatively modest in size, Erica was treated equally with her siblings and mother under the Will, and the evidence from the Defendants indicates that Marie and the siblings have significant competing moral and final claims on the deceased's estate.
13. Sonia, Anthony, Angela, Terese, Robert and Marie each deposed to their material and financial circumstances although counsel for the Defendants acknowledged that Marie currently suffers from medical conditions which now makes her incapable of giving reliable updating evidence in regard to matters of fact (as confirmed by a medical report in evidence from Dr John Albert Roberts) and that Terese verifies her mother's circumstances (T43.6-12). Their circumstances were helpfully summarised from the affidavit evidence in the Defendants' written submissions, and on which the following is based.
14. Sonia is 51 years old and a single parent of two children, aged 15 and 13. She does not receive child support and has sole responsibility for both children. She works as a Professor of Law at a university in Sydney. Her net weekly income is $2,850.00 and her weekly expenditure is $2,696.00. She has assets totalling $2,686,036 (comprising a family home in Sydney, a family home in Victoria, a car and superannuation) and liabilities totalling $1,433,967.47. Sonia intends to use her inheritance to pay for the education of her children and their care and also to undertake repairs to her property in Victoria.
15. Anthony is 57 years old and married. He has three adult children, one of whom lives at home. Anthony is retired and is medically unfit to return to work. His household weekly income is $1,983.75 and his weekly expenses are $1,900.00. Anthony and his wife have assets totalling $400,202.00 (a family home; two cars, furnishings and superannuation) and liabilities totalling $111,750 (mortgage and a credit card debt). Their circumstances have been severely affected by the recent flooding events in Northern NSW, with their family home being flooded twice and the cost of finding alternate accommodation for the period of the restoration and decontamination works being approximately $30,000. Anthony intends to use his inheritance to financially support himself and his wife in retirement, reduce his mortgage and to pay for urgent repairs and maintenance to his family home.
16. Angela is 58 years old and married. She works as a specialist counsellor, clinical supervisor and runs a Bed and Breakfast accommodation establishment with her husband which reported a loss of over $10,000 last year. Their household weekly income is $1,200.00 and their weekly expenditure is $1,207.00. Angela has a medical condition that requires her to attend regular and costly specialist appointments. Angela and her husband have assets totalling $650,495 (consisting of a house and land, two vehicles and superannuation) and liabilities totalling $99,000. Angela intends to use her inheritance to reduce her mortgage and to carry out some remedial work to her home.
17. Robert is 62 years old and is single. He has one child for whom he is required to pay child maintenance. He is a concreter by occupation however, he is experiencing difficulties in obtaining work due to back injuries. He earns $650.00 per week and has expenses of $650.00 per week. Robert has assets totalling $58,000 (consisting of a car, a motorbike and superannuation) and liabilities of $68,000. Robert intends to use his inheritance to pay off the substantial interest that accrued for late child maintenance payments, pay for future medical expenses relating to his back and to place a deposit on a mobile home.
18. Terese is 60 years old and separated. She works in an administrative role on a part time basis. She has two adult children, one of whom lives at home and pays board and half of the utility costs. She earns $800.00 per week and her expenditure is $825.00 per week. She has assets totalling $1,297,000 (a family home, car and superannuation) and liabilities totalling $338,000. Terese intends to use her inheritance to reduce her mortgage, financially support herself in her day-to-day living and retain the balance for her retirement. Terese is also the sole carer for Marie.
19. Marie is 80 years old and lives alone in housing commission accommodation. Her sole income is a Centrelink age pension of $987.60 per fortnight. Her expenditure is $450.00 per week. Marie's assets consist of second-hand furniture, valued at $3,000, and potentially some money in a bank, the exact amount of which in unknown but is minimal. She has liabilities of $1,600. Marie has been hospitalised on several occasions due to her ill health and has been diagnosed with many long-term disability and health issues (schizoaffective disorder, diabetes, osteoarthritis, severe back pain, chronic decreased mobility, obesity and hypertension). She receives a Level 3 Aged Care Package to assist her with her complex care needs. Marie intends to use her inheritance to pay for her current and future medical expenses and to pay for her general needs as she gets older.
20. Having regard to the above matters, I do not consider that Erica's claims to be anything other than weak and, in some cases, to be of no merit at all, which is a further reason why I am satisfied that it is appropriate to make an order that the FASOC be dismissed in this case.

Costs

1. On the issue of costs, the Defendants' primary position, as advanced at the hearing by Mr Armfield, is that the court should order Erica to pay Sonia's costs of the Cross Claim and the Defendants' costs in relation to Erica's claims on an indemnity basis. This position was described by Mr Armfield as put on a cascading basis, as the claim for indemnity costs is made by reference to various offers made to Erica during the course of the proceedings to resolve them.
2. In the alternative, he submitted that Erica should be ordered to pay costs on an ordinary basis.
3. The general rules applicable to the award of costs apply to probate litigation, as they do to other contested litigation. This means that the Court has a broad discretion to award costs and, ordinarily, orders for costs should "follow the event", with the consequence that the unsuccessful party is ordered to pay the successful party's costs: Civil Procedure Act 2005 (NSW) s 98; UCPR r 42.1; Walker v Harwood [2017] NSWCA 228 at [52].
4. Two exceptions to the general rule that costs follow the event have been recognised to apply in probate litigation, being: 1. where the testator has, or those interested in the residue have, been the cause of litigation, the costs of the party who unsuccessfully challenged the will may be paid out of the estate; and 2. if the circumstances reasonably called for an investigation of the will, the costs may be left to be borne by those who incurred them. See Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709; Shorten v Shorten (No 2) [2003] NSWCA 60 at [14]-[15].
5. In my view, neither of those exceptions apply in this case, such that the starting position is that the ordinary rule that costs follow the event should apply.
6. Applying the general rule, given the successful outcome of Sonia's application for a grant of probate in solemn form, I am persuaded that Erica should pay Sonia's costs of the Cross Claim.
7. As the FASOC is to be dismissed and I have found that the claims advanced by Erica lacked merit, I also see no reason why Erica should not pay the Defendants' costs of the claims she made in the proceedings.
8. As to the claim for indemnity costs, the principles governing the exercise of the discretion to award indemnity costs are well established. As with costs orders generally, the purpose of an indemnity costs order is not to punish an unsuccessful party. Rather, it is to more fully compensate the successful party for their costs in circumstances where the exercise of discretion calls for such an order. Such circumstances include conduct by the unsuccessful party which is plainly unreasonable or some relevant delinquency on their part: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44]; Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6].
9. Although there has been some reluctance by courts to make an award of indemnity costs against self-represented litigants, such an award has been recognised as appropriate where the self-represented litigant must have known that there were no prospects of success, where they made serious allegations without a proper basis and where they unreasonably rejected a genuine offer of compromise: see, for example, Vink v Tuckwell (No 3) (2008) 67 ACSR 547; [2008] VSC 316 at [109]; Kazal v Independent Commission Against Corruption (No 2) [2020] NSWSC 17 at [64], [68], [71]-[74].
10. Sonia and the Defendants have made various informal offers to Erica to settle the proceedings. The first was made on 16 September 2019, just after the proceedings were commenced by Erica. That offer provided for Erica's application and summons to be withdrawn, the Will to be accepted as the last Will of the deceased, the probate order made in March 2019 to be confirmed and that Erica could retract the Deed of Disclaimer and take her one-seventh share of the deceased's estate subject providing an undertaking not to bring any further claim against the beneficiaries, the executor or the estate, and each party would pay their own costs (Exhibit C). Erica refused that offer.
11. That offer was not marked "without prejudice" or warn that it was to be relied upon on the issue of costs. It was also made early on in the proceedings, without any explanation as to the merits of the Defendants' position in response to Erica's claim. In those circumstances, I am not persuaded that the Defendants have shown that it was unreasonable for Erica not to have accepted it and that it is an effective basis to award indemnity costs against her: Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8].
12. The next offer relied on is the Deed of Family Arrangement that was sent to Erica's solicitor on 1 April 2021, under cover of an email marked "Without Prejudice save as to costs" (Exhibit E). This offer appears to have sent in the context of notices of motion that had been filed by both Sonia and Erica in the proceedings, and provided for a settlement of all disputes on a similar basis to the 16 September offer, save that it specified that deceased's estate was valued at $746,278.75, that Erica and the other beneficiaries would each receive the same amount, $99,826.40, for the balance of the estate to be paid for legal expenses, and for Erica to release Sonia from all claims against the estate and/or Sonia.
13. The last offer relied on is contained in a letter addressed to Erica dated on 20 April 2022, also marked "Without Prejudice save as to costs" (Exhibit F). Theis offer differed significantly in that it offered compromise the whole proceedings on the basis that probate in solemn form of then Will be granted to Sonia; an order that the time for making a family provision claim be extended to 13 May 2021 (the date on which the FASIOC was filed) and order under s 59 of the Succession Act 2006 (NSW) that Erica receive, in lieu of her provision under the Will, a lump sum of $128,000, with the rest and residue of the deceased's estate to be distributed in six equal shares between the remaining beneficiaries; that Erica would bear her own costs and the Defendants' costs, calculated on an indemnity basis, be paid or retained out of the deceased's estate.
14. In a lengthy letter dated 21 April 2022, Erica refused that offer for reasons that asserted that Mr Sim was constantly attempting to engage in trickery and deceitful practices, an assertion that the offer was invalid by reference to the principles in Calderbank v Calderbank [1975] 3 All ER 333, and assertions that Mr Sim was putting his "hands in the honey pot" and misappropriating funds.
15. In my view, Erica's refusal of the 20 April 2022 offer is attended by sufficient unreasonableness on her part to warrant an order that she pay Sonia's costs of the Cross Claim and the Defendants' costs of the proceedings on an indemnity basis from the next day onwards.
16. The 20 April 2022 offer clearly identified that it would be relied on by the Defendants and Sonia on the issue of costs, was made at a time when most of the evidence had been served and the issues were known and was open for a reasonable period, of 35 days. The offer represented a significant compromise on the part of Sonia and the Defendants as it provided for Erica to receive $128,000, an amount that was greater than that to which she was entitled under the Will (based on the value of the deceased's estate at that time), with no order for costs against her. In my view, that outcome was also patently more favourable to Erica than the outcome in the proceedings, noting that the legal costs incurred by Sonia and the estate in these proceedings, means that there will be a significant diminution in the value of the deceased's estate and a reduction in the amount for distribution to all of the beneficiaries, inducing Erica, and that Erica's interest is likely to be subsumed by the order that she pay legal costs in this case.
17. It is also relevant to the exercise of my discretion that I consider that many of the claims made by Erica had no reasonable basis, such as her claim that the Will was falsified.
18. Sonia and the Defendants also seek orders that they be entitled to recover costs directly from the deceased's estate. I am satisfied that it is appropriate to grant orders that Sonia be entitled to deduct the costs payable to her or any of the other Defendants out of Erica's interest in the deceased's estate and to recover the costs she has incurred in her capacity as the executrix (calculated on an indemnity basis) from the deceased's estate to the extent there is any deficiency after deduction of those costs and will so order.

Conclusion and orders

1. In summary, I have concluded that probate in solemn form of the Will should be granted to Sonia, that the value of the deceased's estate at the date of the hearing was $746,339.58 (not including unpaid and estimated legal costs of $165,397.34), and that the expenses claimed by Sonia and disputed by Erica were legitimate estate expenses for which proper accounting had been provided.
2. I am also satisfied that the FASOC should be dismissed in circumstances where Erica did not appear at the hearing on 30 June 2022 and the claims she propounded lack merit, and that Erica should be ordered to pay costs on an ordinary basis up to 20 April 2022, and thereafter on an indemnity basis, which may be deducted from her interest in the deceased's estate.
3. For these reasons, I make the following orders: 1. The Will dated 20 August 2015 of the late Alberto Magri (deceased), who died on 12 December 2018, be admitted to probate in solemn form. 2. Probate in solemn form of the Will made on 20 August 2015 of the deceased be granted to the First Defendant/Cross Claimant. 3. The proceedings be remitted to the Senior Deputy Registrar in Probate to complete the formalities of the grant. 4. The First Amended Statement of Claim filed by the Plaintiff on 13 May 2022 be dismissed. 5. The Plaintiff to pay the Defendants' costs of the proceedings instituted by her and the First Defendant's/Cross Claimant's costs of the Cross Claim, calculated on an ordinary basis up to 20 April 2022 and on an indemnity basis from 21 April 2022, as agreed or assessed. 6. The First Defendant/Cross Claimant to be entitled to deduct any costs payable to her or any of the other Defendants out of the Plaintiff's interest in the deceased's estate. 7. The First Defendant's/Cross Claimant's costs of the proceedings and of the Cross Claim, calculated on the indemnity basis, to the extent they are not recovered from the Plaintiff, be paid out of the deceased's estate, and in the event there is a deficiency between the costs deducted pursuant to Order (6) and the costs payable pursuant to this order, that deficiency shall be borne equally from the shares of the beneficiaries of the estate other than the Plaintiff.

Endnote

1. At the hearing, Sonia did not press for reimbursement for candles and Tim Tam biscuits in the amount of $7.82 that had been included in Exhibit A. The schedule incorrectly calculates the amount (after subtracting $7.82) to be $1270.41. The correct amount, after summing up all the individual expenses (and excluding the candles and the biscuits) is $1260.97. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2022