MacKenzie v Osburn & Ors (No 2);Osburn v MacKenzie [2005] NSWSC 786

MacKenzie v Osburn & Ors (No 2);Osburn v MacKenzie [2005] NSWSC 786

The defendants were to pay the successful plaintiff's costs, but not on an indemnity basis. Although costs out of the estate might ordinarily be considered in probate proceedings, the informal document disposed of the whole estate without a residuary disposition, so s 46C(2) and Part 2 of the Third Schedule cl 6 would make specifically disposed assets bear expenses rateably by value; because the house and furniture passed to the successful plaintiff, an estate costs order would require her to bear the lion's share of her own costs. Indemnity costs were refused because the defendants' rejection of the Calderbank offer was justified by matters requiring investigation.

Jurisdiction
Australia
Judgment Date
02 August 2005
Procedural Posture
Probate Proceedings Concerning an Application to Have an Informal Document Declared to Be a Will Under S 18 a of the Wills, Probate and Administration Act 1898 and Related Proceedings Seeking Probate of an Earlier Will / Ex Tempore Judgment on Orders and Costs After Reasons Admitting the Informal Testamentary Document to Probate
Outcome
In matter 117650/04 the summons was dismissed with no order as to costs. In matter 105416/04 the document dated 17 December 2001 was declared an informal testamentary document, the plaintiff was granted probate, and the plaintiff's costs were ordered to be paid by the defendants with no order as to the defendants'...
Legal Topics
['informal Testamentary Documents' 'probate' 'costs' 'calderbank Offers' 'costs Out of Estate' 'indemnity Costs' 'application of Assets in a Solvent Estate']
['succession and Probate' 'civil Procedure'] ['informal Testamentary Documents' 'probate' 'costs' 'calderbank Offers' 'costs Out of Estate' 'indemnity Costs' 'application of Assets in a Solvent Estate']

Case Brief

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Procedural Posture

Probate Proceedings Concerning an Application to Have an Informal Document Declared to Be a Will Under S 18 a of the Wills, Probate and Administration Act 1898 and Related Proceedings Seeking Probate of an Earlier Will / Ex Tempore Judgment on Orders and Costs After Reasons Admitting the Informal Testamentary Document to Probate

Legal Issues

  1. 1 ["Whether the successful plaintiff's costs should be paid by the defendants or out of the estate assets." "Whether the plaintiff's costs should be ordered on an indemnity basis following rejection of a Calderbank offer." 'Whether the related summons seeking probate of an earlier will should be dismissed following admission of the informal testamentary document to probate.']

Ratio Decidendi

The defendants were to pay the successful plaintiff's costs, but not on an indemnity basis. Although costs out of the estate might ordinarily be considered in probate proceedings, the informal document disposed of the whole estate without a residuary disposition, so s 46C(2) and Part 2 of the Third Schedule cl 6 would make specifically disposed assets bear expenses rateably by value; because the house and furniture passed to the successful plaintiff, an estate costs order would require her to bear the lion's share of her own costs. Indemnity costs were refused because the defendants' rejection of the Calderbank offer was justified by matters requiring investigation.

Court Disposition

In matter 117650/04 the summons was dismissed with no order as to costs. In matter 105416/04 the document dated 17 December 2001 was declared an informal testamentary document, the plaintiff was granted probate, and the plaintiff's costs were ordered to be paid by the defendants with no order as to the defendants'...

Orders

  • ['In proceedings numbered 117650 of 2004, the summons be dismissed.' 'In proceedings numbered 117650 of 2004, there be no order as to costs.' 'The document dated 17 December 2001 is an informal testamentary document within s 18A of the Wills, Probate and Administration Act 1898.' 'The plaintiff be granted probate of...