Gardiner v Wong (No. 2) [2026] NSWSC 644
Estate litigation is a complex and highly discretionary area of law. While disputes over a deceased estate often arise in emotionally charged circumstances, claimants must remain focused on the commercial realities of litigation, including the risk of an adverse costs order.
Costs in succession matters are notoriously difficult to predict because they are ultimately awarded at the discretion of the Court, a discretion that is particularly broad in family provision proceedings.
Unfortunately, the answer to the question “Will I get my legal costs paid if I challenge this Will?” is often that it depends. This article will explore a range of the competing factors that can inform a costs order in estate litigation, as well as the recent case of Gardiner v Wong (No. 2) [2026] NSWSC 644
The Common Law Overlay – Davies v Gregory
Historically, the starting point in probate litigation was the principle derived from Davies v Gregory (1873) LR 3 PD 28. The Court recognised that where litigation was “reasonably caused by the conduct of the deceased testator”, the costs of that litigation should ordinarily be borne by the estate. What does this mean in practice?
If a deceased person’s actions have created uncertainty requiring the intervention of the court, it may be unfair for the parties attempting to resolve that uncertainty to bear the costs personally. Well established examples include:
- Cases involving ambiguous drafting;
- Inconsistent testamentary provisions or documents; or
- Doubt surrounding the identity of beneficiaries or executors.
Often, such matters will not be contested, and an executor or administrator is indeed prudent to seek guidance from the court.
The principle becomes more difficult to apply in family provision and testamentary capacity cases. In those matters, there is often no ambiguity in the Will itself. A perfectly valid and carefully drafted Will may nevertheless be regarded as inadequate by a disappointed beneficiary.
Modern approach to costs in Estate litigation
Courts have increasingly moved away from the presumption that estate litigation costs should automatically be paid from the estate merely because the deceased’s conduct gave rise to the dispute. In New South Wales, this shift is reflected in Practice Note SC Eq 7, which provides that:
“In probate matters, no presumption with respect to the making of an order for costs arises by reason only of the fact that the testator was the cause of the litigation or because the circumstances led reasonably to an investigation concerning the testator’s Will.”
Costs Follow the Event
Under rule 681 of the Uniform Civil Procedure Rules 1999 (Queensland), the successful party is generally entitled to recover its costs from the unsuccessful party unless the Court orders otherwise.
The effect of this rule is that an unsuccessful claimant challenging a Will may be required to pay not only their own legal costs, but also a substantial proportion of the successful party’s costs. While succession matters often involve special considerations as discussed below, the ordinary rule remains the starting point.
Other Factors That Can Influence Costs
Conduct of the Testator
Although the principle in Davies v Gregory has been somewhat diminished, the conduct of the deceased remains a relevant consideration.
Where a deceased person’s conduct has genuinely created uncertainty or necessitated litigation, a Court may still depart from the usual rule that costs follow the event. The principle therefore survives as a discretionary factor rather than a presumption.
Conduct of the Executor
There are circumstances by which the conduct of an executor (in defending an estate) can warrant a departure from the general rule. These include:
- unjustified expenditure in defending proceedings (that ought not have been defended);
- a breach of the executor’s statutory and fiduciary duties; or
- wrongly using or dissipation of estate assets.
Calderbank Offers
Another significant consideration is whether either party has made a Calderbank offer (derived from the case of Calderbank v Calderbank [1975] 3 All ER 333).
A Calderbank offer is a written settlement proposal made at any time before final determination of a matter. The offer should represent a genuine compromise in the proceedings, and foreshadow the costs consequences of failing to accept the offer if it is beaten at trial.
A successful Calderbank argument may result in indemnity costs being awarded from the date of the offer. However, the Court retains a broad discretion and is not obligated to consider the offer. The critical question is whether it was unreasonable for the recipient to reject the offer when it was made.
The Court will consider factors such as:
- the stage of the proceedings;
- the information available to the parties at the time;
- the clarity of the offer;
- the extent of the compromise proposed; and
- whether the offer clearly foreshadowed a claim for indemnity costs.
Case Study – Gardiner v Wong (No. 2)
The decision in Gardiner v Wong (No. 2) [2026] NSWSC 644 provides a useful illustration of how these principles operate in practice.
The plaintiff commenced proceedings alleging that a property held by the defendant was in fact held on trust for the deceased and therefore formed part of the estate. In the alternative, she pursued a family provision claim seeking further provision from the estate. The substantive proceedings failed. The Court rejected the trust claim and also dismissed the family provision application.
The plaintiff argued that her costs should be paid from the estate, relying by analogy upon the principle in Davies v Gregory. Justice Bennett rejected that submission and ordered personal costs on the below grounds:
a. “I accept Edwin’s submission that he has been wholly successful in the proceedings and that costs should follow the event.”
b. “I do not accept that the deceased was the cause of the litigation.”
c. “I do not accept that the “Conduct of the testator” principle… should apply by analogy to the context of these proceedings.
Interestingly, the defendant was denied indemnity costs based on an earlier Calderbank offer. Although the Court accepted that the offer represented a genuine attempt to compromise the dispute, it found that it had not been unreasonable for the plaintiff to reject it.
Key Takeaways
The decision in Gardiner v Wong (No. 2) serves as a reminder that there is no guarantee that estate litigation costs will be paid from the estate.
- The historical principle from Davies v Gregory survives only as a discretionary consideration and does not create a presumption that costs will be paid from the estate;
- Family provision claimants are not automatically protected from adverse costs consequences;
- Care must be taken to ensure that genuine offers are made early on, in order to maximise the likelihood that a Judge will award costs; and
- Courts will examine the substance of the litigation, not just the fact that the matter involves a testamentary document.
Before commencing any challenge to a Will or estate, claimants should obtain specialist legal advice not only about the merits of their claim, but also about the potential costs consequences if the litigation is unsuccessful.
Here at Rostron Carlyle Lawyers, Michael Sing is an experienced commercial and estate litigation lawyer who can assist you in identifying costs risks early on in a matter.
The blog published by Rostron Carlyle is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Rostron Carlyle on any legal queries concerning a specific situation.
