[10] It was by no means unreasonable for the plaintiffs' legal advisers to believe that the claim had reasonable prospects of success. Its ultimate lack of success paid attention, in large measure, to the assets and resources available to their mother. In those circumstances, I view this case in the same way as Palmer J viewed the situation of the unsuccessful applicant in Sherborne and am of the opinion that 'the overall justice of the case' , to use Gaudron J's expression, warrants the conclusion that no order for costs should be made against the plaintiffs."
8 In Re Sherborne Estate (No 2) [2005] NSWSC 1003, the unsuccessful applicant failed because she was not able to demonstrate sufficient unequivocal dependency on the deceased to qualify as an "eligible person" within paragraph (d)(i) of the definition. However, there had been a loving and mutually supportive relationship between the applicant and the deceased and the applicant's financial position was very modest. It was not unreasonable for her legal advisers to believe that the application for provision from the estate had some prospect of success.
9 If the usual costs order had been made against the applicant when her Summons was dismissed, the consequences could have crippled her future prospects in life. However, refusal of such an order would have had far less severe consequences on the successful defendant. In those circumstances, the "overall justice of the case" required that no costs order be made against the applicant: judgment paras [64]-[66].
10 The circumstances of Marion's case are not remotely similar to those in Re Sherborne or in Moussa v Moussa. In brief, Marion's claim failed because she was already in comfortable financial circumstances even without provision from the deceased's estate. She had been left a provision of $470,000 out of the estate and wished to have more, primarily to advance the prospects in life of her adult, able bodied children and in order to enhance the rural property of her husband. She and her advisers went to considerable pains to put forward evidence justifying a claim for a total of $3,203,000 out of an estate of $4,985,000 when, as she must reasonably have acknowledged, Alan's moral claim to the testator's bounty was far higher than her own and his financial circumstances were far more precarious in that although he owned rural land of considerable value he was extremely "income poor".
11 I do not regard Marion's claim as borderline. However, I readily acknowledge that other minds may come to a different conclusion. Marion may have succeeded in her application before another Judge. That is the nature of this kind of litigation.
12 Is the "overall justice of the case", which is to be considered in determining the appropriate costs order, affected by the fact that the testator made far larger provision for Alan than he did for Marion? Although Mr Ellison did not propound, even as a prima facie principle or presumption in family provision cases, that children of a testator should receive equal testamentary treatment, he placed at the forefront of his case the fact that Alan had received far more from the testator than had Marion: see judgment paras [57]-[58]. That circumstance, of course, sends a powerful subliminal message and to emphasise it was undoubtedly good advocacy. That children should be treated equally is a normal parental and societal aspiration.
13 However, as the law presently stands, equality of testamentary treatment between children is not, in itself and without more, a foundation for a family provision claim. I cannot, therefore, permit inequality of testamentary treatment in Marion's case affect the "overall justice of the case" for the purposes of a costs order.
14 Mr Ellison has made no submission that the usual costs order should not be made because it would have severe financial consequences for Marion. This is understandable.
15 Marion's own costs will be about $210,000. They are far larger than they should be - a matter to which I will return. Alan's costs of both proceedings will be about $204,000. I will assume that this amount will be apportioned roughly equally between both proceedings. If the usual costs order is made against Marion, she will have to pay her costs and about $102,000 for Alan's costs, a total of about $312,000, although it is highly probable that Alan's costs will be reduced on assessment.
16 Nevertheless, the evidence suggests that if the usual costs order is made against Marion, neither Marion nor Robert will have to sell assets to pay those costs. Marion's provision of $470,000 out of the estate will be sufficient to pay those costs and she will have a significant amount left for discretionary expenditure.
17 In those circumstances, I can see no discretionary factors in Marion's case justifying departure from the usual costs rule. As Giles JA said in Jvancich v Kennedy (No 2) [2004] NSWCA 397, the overall justice of the case is not remote from costs following the event.
Rosemary's proceedings