Hall v Carney (No 2)

In *Hall v Carney (No 2)*, the Full Court of the Supreme Court of South Australia considered an appeal concerning the costs of a probate dispute. The dispute arose from a challenge to the validity of the deceased's last will and testament. The trial judge had pronounced for the force and validity of the will, rejecting the defendant's argument that suspicious circumstances rebutted the presumption of due execution, knowledge, and approval.

The legal issues before the Full Court were whether suspicious circumstances had been established, and if so, what impact this had on the costs order made by the trial judge. The Full Court was also required to determine the appropriate costs order for both the trial and the appeal, particularly in light of the defendant's partial success on appeal regarding the existence of suspicious circumstances, despite the ultimate failure of the appeal.

The Full Court, by majority, held that while suspicious circumstances did arise, justifying the plaintiffs in having to prove knowledge and approval at trial, these circumstances did not ultimately prevent the plaintiffs from establishing knowledge and approval on the evidence. The majority agreed with the trial judge's conclusion that knowledge and approval were established. However, the majority set aside the trial judge's costs order and ordered that the costs of the trial for all parties be paid out of the deceased's estate on an indemnity basis.

Regarding the appeal, the majority found that the defendant's success on the discrete issue of suspicious circumstances did not warrant an award of costs in their favour, as the appeal was otherwise doomed to fail. The majority concluded that the interests of justice did not support further depletion of the estate by ordering the defendant's appeal costs be paid out of it, but ordered that the plaintiffs' costs of the appeal be paid out of the estate on an indemnity basis.