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The orders sought by Darren’s children

3. Darren’s children propose the following orders in relation to the costs of the application: (a) the defendants’ costs are to be paid on the indemnity basis, or alternatively on the party and party basis, from the plaintiff’s share of the Estate; and (b) the plaintiff is to bear her own costs without recourse from the Estate, and reimburse the Estate in respect of any payment of Estate funds for same. [sic]

4. The following matters are highlighted in support of their position: (a) accepting the existence of an overriding discretion, in a civil proceeding costs will usually follow the outcome; (b) Leanne having created the litigation should bear the costs of it where she failed; (c) where her own costs have not been properly incurred, they should not be funded out of the estate. To find the costs were not properly incurred does not require the establishment of dishonest conduct; (d) in this case Leanne failed to seek judicial advice before making the application- a course that was open to her; (e) prior to engaging lawyers Leanne misled the other beneficiaries as to the existence of a will and the effect of the grant of letters of administration to her; (f) she failed at any time prior to receipt of correspondence from solicitors on 13 October 2025 to seek advice as to the entitlement if any of Darren’s children to a share in the estate; (g) the conversations relied upon as the foundation for her application were not accepted by the court as having occurred; and (h) Leanne was wholly unsuccessful in her application.

The costs orders proposed by Leanne

5. Leanne submits that costs should be borne by the estate as a whole rather than paid out of her 50% share. She says those costs should be paid on a solicitor and client basis. Her reasons for seeking those orders may be summarised as follows: (a) as the administrator of the estate, it was not inappropriate for her to bring to the attention of the court a document which might constitute a will pursuant to s 11A of the Wills Act 1968 (ACT); (b) the 2013 document was accepted as genuine and was authored and signed by Johann. It thus provided a legitimate foundation for the application even though not ultimately accepted by the court; (c) the question to be addressed is not so much concerned with the unsuccessful outcome of the application but whether the circumstances surrounding the 2013 document justify the costs being treated as costs of the estate; (d) there is a public interest in the court determining questions of the kind ventilated by Leanne’s application; and (e) it is appropriate for costs of probate litigation to be borne by the estate where the circumstances giving rise to the litigation originate with the deceased person.

What orders are appropriate?

6. The costs of a proceeding, or of an application in proceeding, are in the discretion of the court: r 1721(1) of the Court Procedures Rules 2006 (ACT) (the Rules). As a judicial discretion, it is to be exercised consistently with established principle.

7. At the time the application was made Leanne was the administrator of Johann’s estate, having the same rights and liabilities as a person appointed the executor of the deceased person: s 13 of the Administration and Probate Act 1929 (ACT). She was therefore a trustee within the meaning of Pt 2.17 of the Rules and as a consequence r 1732 applied to her costs: 1732 Costs—trustee (1) This rule applies to a party who sues or is sued as trustee. (2) Unless the court otherwise orders— (a) the party is entitled to have costs of the proceeding that are not paid by someone else paid out of the fund held by the trustee; and (b) the costs must be assessed on a solicitor and client basis. (3) However, the costs caused by an unsuccessful claim or unsuccessful resistance to any claim to any property must not be paid out of the fund, unless the court otherwise orders. (notes omitted by this court)

8. Leanne was a person suing as trustee of the estate. As a consequence, in the present circumstances the starting position is the costs of the proceedings not payable by someone else are to be paid out of the estate on a solicitor and client basis. That is unless the costs are caused by an unsuccessful claim or unsuccessful resistance to a claim to any property, in which case they are not to be paid out of the fund unless the court otherwise orders. The application in this case was not a claim to any property made on behalf of the estate or resistance to a claim to any property. It was an application seeking orders in relation to a document prospectively constituting an informal will. It therefore does not fall squarely within r 1732(3) of the Rules. Consequently, I start from the position costs should be paid out of the estate on a solicitor and client basis unless the circumstances indicate some other order is warranted.

9. The particular circumstances I consider to be of most relevance in this case are: (a) the 2013 document was brought into existence by Johann and kept by her for approximately 13 years, and on the face of the document a legitimate question arose as to whether s 11A of the Wills Act was satisfied, leading to recognition of the 2013 document as a will; (b) although there was some delay on Leanne’s part in seeking legal advice about the 2013 document, and although she did not exercise her right to first seek judicial advice about its meaning, there is no indication either of those steps would have substantially altered the course that followed. The seeking of judicial advice would still have required an application. Had legal advice been sought about the 2013 document there is every prospect a similar application pursuant to s 11A of the Wills Act would have ensued; (c) although I expressed some reservations about aspects of Leanne’s evidence, the existence of the 2013 document meant the subject application was not lacking in legitimacy or otherwise vexatious; and (d) there was in the outcome sought by the application, whereby the bulk of the estate would pass to Leanne, substantive self-interest. However, the pursuit of that outcome was founded in Leanne’s belief it accorded with her mother’s wishes. I refer in particular to the portion of her evidence extracted at [27] of In the estate of Johann Elizabeth Miller [2026] ACTSC 276 and to my observations regarding that evidence at [28].

10. In Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 Powell J made the following observations concerning costs in estate claims at 709: …The general principle to be applied in adversary litigation is that costs follow the event, those costs being taxed on a party and party basis. However, over the years, a number of exceptions to this general rule have come to be recognised. In the field of probate litigation, two such exceptions have come to be recognised, they being: 1. where the testator has, or those interested in [sic] residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate; 2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them…

11. After citing the above passage with approval Connolly J observed Re Estate of Fogarty; Kovacs v Fogarty (No 2) [2007] ACTSC 40; 1 ACTLR 97at [6]: It seems to me that it is wrong to take from these statements of the law the proposition that the general outcome in probate litigation is that costs are borne by the estate. Such an outcome would potentially encourage ill conceived litigation by parties with ill will towards another interested in the estate, who could litigate sure in the knowledge that, even if they were unsuccessful, the other party would have a smaller estate once costs were paid.

12. As to the issue of self-interest significant reliance is placed by Darren’s children on Miller v Cameron [1936] HCA 13; 54 CLR 572, but the issue in that case was quite different. It concerned the removal of a trustee. The court relied upon the well-established principle that in determining an application to remove a trustee the welfare of the beneficiaries was the dominant consideration. The evidence established in an overwhelming way Mr Miller was unsuitable to continue in the position of trustee of the estate, and for him to do so was contrary to the interests of the beneficiaries. He was asked to resign his office by every person interested in the execution of the trust and he refused. His refusal resulted in the legal proceedings which would otherwise have been unnecessary.

13. Here, Leanne filed the application in circumstances where she was a person already granted letters of administration. No question has been raised as to her suitability to fill that office, and no application is made by Darren’s children to revoke the earlier grant. Whilst there is clearly self-interest attached to Leanne’s pursuit of recognition of the 2013 document she was and remains, regardless of the outcome of the application, a beneficiary of her mother’s estate. Her application was thus not in conflict with the interests of all of the beneficiaries and, more importantly, its foundation rested on the 2013 document created by her mother and kept by her for many years. It is the existence of that document which provides legitimacy to the application, albeit unsuccessful in outcome from the perspective of Leanne.

14. For the reasons set out above, I consider the appropriate order for costs is for the costs of each of the parties to be paid from the estate on a solicitor and client basis.

Order

15. I make the following order: (1) The costs of each of the parties to the application lodged on 4 November 2025 are to be paid from the estate on a solicitor and client basis.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 20 August 2026