Lewis v Lewis (No 2)

The case of Lewis v Lewis (No 2) involved a dispute between the parties over the interpretation of clauses in a will and codicils. The matter was heard in the Supreme Court of New South Wales. The plaintiff, the executor of the estate, sought to have certain clauses admitted to probate, while the defendant contested the validity of these clauses. The defendant argued that the clauses were invalid and should not be included in the will.

The court was required to determine whether the disputed clauses in the will and codicils should be admitted to probate and, if so, whether the plaintiff was entitled to costs. The court also had to consider the appropriate costs order given that the defendant was partially successful in their challenge to the clauses. The court needed to balance the general rule that costs follow the event with the discretion to award costs in equity.

The court found that the plaintiff was substantially successful in having the will and codicils admitted to probate, despite the omission of the disputed clauses. However, the court also recognised that the defendant was substantially successful in their challenge to certain clauses, which were omitted from the will. The court exercised its discretion and ordered that the defendant be subrogated to the plaintiff's party/party costs order against the plaintiff. This meant that the defendant, who was acting in the interests of the residuary beneficiaries, would be reimbursed for their costs from the estate, rather than the plaintiff having to pay them. The court also ordered that the defendant be paid interest on the costs from the date of the application.