Geroska v Zlatevski (No 2)

The case of Geroska v Zlatevski (No 2) involved a dispute over the validity of a will, specifically the testamentary capacity of the deceased, George Geroska. The proceedings were heard in the Supreme Court of New South Wales. The primary issue before the court was whether the deceased, George Geroska, was of sound mind and had testamentary capacity when he executed the will in question. The legal question also encompassed the consideration of exceptions in probate litigation to the general principle that costs follow the event, particularly in cases where the deceased is argued to be the cause of the litigation due to issues with their testamentary capacity.

The court was required to determine whether it was reasonable for the defendant, Zlatevski, to investigate the deceased’s will prior to the litigation. It also needed to assess the applicability of exceptions to the general principle of costs following the event in the context of a contested probate case where testamentary capacity is at issue. The court considered whether the deceased's alleged incapacity should shift the burden of costs onto the deceased's estate, thereby placing the onus on the estate rather than the party contesting the will.

In its reasoning, the court found that it was not reasonable for the defendant to investigate the deceased's will prior to the litigation. The court held that the deceased was the cause of the litigation due to the issues with his testamentary capacity. Consequently, the court deemed it appropriate to consider exceptions to the general principle of costs following the event. The court ruled that it was not equitable to place the burden of costs on the estate, given the circumstances of the case. As a result, the application to vary the costs order was refused.