Daulizio v Trust Company of Australia & Ors

[2005] VSCA 215

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administration and Probate
2. › Costs
3. › Suspicious circumstances
4. › Will prepared by person obtaining large legacy
5. › Probate proceeding
6. › Will proved in solemn form
7. › Whether successful party to be denied costs
8. › Whether unsuccessful parties' costs to be paid out of successful party's legacy or out of residue
1. Practice and Procedure
2. › Costs
3. › Probate proceedings
4. › Discretion of trial judge
5. › Appellate review of costs orders
6. › Whether trial judge erred in principle
1. Administration and Probate
2. › Costs
3. › Nock v Austin principle
4. › Whether principle confined to residuary legatees
5. › Whether applicable to specific legacies
6. › Supreme Court Act 1986 (Vic), s 24(1)

Quick Take

The Nock v Austin principle — that a party who creates suspicious circumstances in relation to a will must bear the costs of the resulting litigation out of their share of the estate — is not confined to residuary legatees but extends to specific legatees. Section 24(1) of the Supreme Court Act 1986 (Vic) and Rule 63.02 confer power at least as wide as RSC Order 65 rule 14D to order costs out of a specific legacy. A party who prepares a will conferring a substantial benefit on themselves without involving an independent solicitor may be ordered to bear all parties' costs from their legacy even if the will is upheld.