When a Will is lost or destroyed, the presumption of intentional destruction (animo revocandi) either does not arise or is rebutted successfully. The key principles established in Sugden v Lord St Leonards are:

  • (a) The contents of a lost document, including a Will, can be proven using secondary evidence.
  • (b) Statements made by the testator—whether written or oral, and whether made before or after execution—may be admissible as secondary evidence of the Will’ contents.
  • (c) The testimony of a single witness, even if that person has an interest in the estate, can be accepted to prove the contents, provided their credibility and honesty are not in doubt.
  • (d) Probate can be granted for those parts of the will that can be sufficiently proven, even if not all of the contents are recoverable.

Notably, aspects of this authority—particularly points (b) and (d)—have been criticised in decisions such as Woodward v Goulstone and Atkinson v Morris [1897] P 40. While not overruled; courts are unlikely to expand Sugden’s application.

On 25 March 2025, Hammerschlag CJ in Eq issued the following directives in The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253

1. The caveat filed on 22 May 2023 is to be withdrawn.

2. The codicil dated 14 June 2022 is recognised as a modification of the will dated 22 May 2015 as per s8 of the Succession Act 2006.

3. Probate in solemn form is awarded for the will and codicil to the plaintiff, who must prepare Short Minutes reflecting the outcome.

4. Parties to submit written arguments regarding costs (limited to two pages) within seven days, sent via email to each other and the Associate. Costs will be addressed based on submitted documents unless otherwise noted.

On 07 April 2025, the Estate of Mimi Milka Jaksic (Berger) (Costs) [2025] NSWSC 332  reaffirmed that the general rule in civil litigation—that costs follow the event—applies equally in probate proceedings, subject only to narrowly defined exceptions. The plaintiff unsuccessfully challenged the validity of a Will and codicil, claiming the deceased had died intestate. The defendant (the primary beneficiary and executor) sought orders for costs following two settlement offers. The court ultimately upheld the validity of the Will and codicil, finding that the plaintiff’s claims were without reasonable basis.

Costs Principles

The Court emphasised the application of r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), confirming that the “costs follow the event” rule is displaced in probate matters in exceptional circumstances. There is no carve-out for probate or parens patriae matters, as clarified in Re Kerry (No 2) and Oshlack v Richmond River Council. 

“The possibility of adverse costs orders may well inhibit some individuals and groups from bringing cases to court which involve challenges to aspects of public law. Express recognition of this fact does not, however, mean that the courts should remove this inhibition by adopting a practice of declining to follow the usual order as to costs in cases of ‘public interest litigation’. Whether or not one regards a particular applicant’s actions as well-intentioned and striving, albeit unsuccessfully, to serve some perceived public interest, the respondent still faces real costs from having to defend the proceedings successfully. The applicant had a choice as to whether or not to be a party to the relevant litigation. The respondent typically had no such choice. The legislature has chosen not to protect such applicants from the effects of adverse costs orders, whether by an express statutory exemption or the creation of some form of applicants’ costs fund. In such circumstances, one may well feel some sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs.”

The Estate of Mimi Milka Jaksic (Berger) (Costs) [2025] NSWSC 332 at [16]

The recognised exceptions in probate litigation—derived from Re Estate of Paul Francis Hodges; Shorter v Hodges—apply where:

  1. The litigation was caused by the testator or those interested in the residue or
  2. There were reasonable grounds to investigate the testamentary documents.

These exceptions do not override the general rule, nor are they treated as judicially created carve-outs of a statutory principle. In Etherton v Mitchelmore [2024], NSWSC 170 Basten AJ said of the so-called exceptions identified by Powell J that: “…the term “exception” may be thought to imply that the rule does not operate in particular circumstances. That would clearly be wrong: it is not for the courts to craft exceptions to a statutory rule.”

Background

The defendant made two settlement offers:

  • 23 May 2024: Formal offer grant to him of probate in solemn form of the Will with the Codicil, with the plaintiff’s costs paid on a standard basis.
  • 31 October 2024: Calderbank offer of $300,000, inclusive of costs.

The plaintiff argued her challenge was reasonable and citing the estate’s significant size that costs should be paid from the estate. However, Hammerschlag CJ in Eq found the plaintiff had no factual basis to challenge the Will and misunderstood key aspects of the codicil’s execution.

Findings

  • The defendant rebutted the presumption of revocation (when a Will last known to be in the testator’s possession cannot be found). The evidence showed the deceased believed her will was with her solicitors, and the Will and codicil were consistent with her long-term intentions.
  • The codicil had testamentary effect, either reviving or confirming the Will.
  • Either exception to the general costs rule did not justify the plaintiff’s challenge. The deceased had not caused the litigation, and the circumstances did not warrant full investigation once clarifying evidence was available.

Orders

  • The plaintiff (Branka) was ordered to pay the defendant’s (Dusko’s) costs on the ordinary basis until 31 October 2024, and on an indemnity basis thereafter.
  • The plaintiff was not entitled to recover her costs from the estate.
  • As the primary beneficiary, the defendant could not recover any shortfall in costs from the estate.

Significance

The Estate of Mimi Milka Jaksic (Berger) (Costs) [2025] NSWSC 332 confirms that contested probate litigation is not a “no-costs” jurisdiction. Large estate size does not justify weak claims, and the statutory costs rule applies unless a recognised exception clearly arises. Offers of compromise and Calderbank offers continue to be critical in assessing costs outcomes.

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