Who meets the cost of a will challenge?

In the civil jurisdiction, costs generally follow the event.  That is, the loser pays the winner’s costs.  However, there are exceptions to this.  In the context of probate applications, the general rules of costs will not necessarily apply where:

• the litigation arises due to the will-maker’s fault due to the state of the will-maker’s final will
• questions arise regarding the will-maker’s capacity

In the context of a probate challenge the next matter for consideration will be whether the challenger, even if usuccessful should be awarded costs from the estate.

Costs can be awarded from the estate where:

• even if testamentary capacity is found, the court is satisfied as to the validity of the challenge (Woodward v Smith)
• the decision as to capacity is finely balanced (Nijsse v Squires)

References:

• High Court Rules, r 14.2(a), 14.7
• Estate Donna June Bengston [2013] NZHC 2694
• Fraser v Chalmers (1997) 11 PRNZ 348
• In re Paterson (deceased) [1924] NZLR 441
• Nijsse v Squires HC Auckland CIV-2002-404-1618, 12 December 2003 (the validity of the will made while the will-maker was seriously ill in hospital was subsequently overturned by the Court of Appeal on 6 July 2004)