Heffernan v Innes (No 2)

In the matter of Heffernan v Innes (No 2), the plaintiff sought to have an informal document accepted as the will of the deceased, while the defendants contested the validity of the document and raised several allegations, including the existence of an unfound will and a serious allegation of misconduct. The case was heard in the Supreme Court of New South Wales. The legal issues the court was required to decide included whether the plaintiff should be granted an order for indemnity costs, whether the defendants' defences and serious allegations had reasonable prospects of success, and whether there were circumstances warranting an exception to the general rule that costs follow the event.

The court found in favour of the plaintiff, propounding the informal document as the will of the deceased, rejected the defence of lack of testamentary capacity, and dismissed the cross-claim of the defendants. The court held that the defendants' defences and serious allegations did not have reasonable prospects of success. The court also considered the nature of the proceedings, the offers made by the plaintiff, and the defendants' failure to accept those offers. The court found that the defendants' conduct in maintaining their defences and making the serious allegation, despite a lack of reasonable prospects of success, warranted the exercise of the court's discretion to make an indemnity costs order in favour of the plaintiff.

The court determined that the plaintiff should be granted an order for indemnity costs, and the defendants' costs should not be paid out of the estate of the deceased. The court held that the nature of the proceedings, the offers made by the plaintiff, and the defendants' failure to accept those offers were relevant factors in determining the appropriate costs order. The court held that the circumstances warranted the exercise of the court's discretion to make an indemnity costs order in favour of the plaintiff, and the defendants should pay the plaintiff's costs of the proceedings calculated on the indemnity basis.

The final orders of the court were that the defendants pay the plaintiff's costs of the proceedings calculated on the indemnity basis, and that the defendants' costs should not be paid out of the estate of the deceased. The court also made an order that the defendants' cross-claim be dismissed with costs.