MacKenzie v Osburn and Ors (No 2);Osburn v MacKenzie

The case of MacKenzie v Osburn and Ors (No 2); Osburn v MacKenzie involved a dispute over the interpretation and application of the Wills, Probate and Administration Act 1898 (Qld) regarding an informal document that was claimed to be a will. The primary issue was whether the document should be declared as a will under section 18A of the Act, and if so, how the costs associated with the litigation should be distributed among the parties.

The legal issues before the court included the validity of the informal document as a will, the application of section 46C(2) of the Act in distributing debts, and the implications of a Calderbank offer made by the plaintiff. The court had to determine whether the informal document could be recognised as a will despite not specifying a residuary estate, and if the plaintiff's Calderbank offer should be accepted in light of the need for further investigation into the document's contents and implications.

The court rejected the plaintiff's Calderbank offer due to several matters requiring investigation. It noted that the informal document, although disposing of all assets, did not mention a residuary estate. The court found that debts should be met in the order outlined in Part 2 of the Third Schedule of the Act, with the highest valued asset, a house, passing to the plaintiff under the informal document. Given these circumstances, the court concluded that ordering the plaintiff to bear the lion's share of the costs would be unjust. Therefore, the plaintiff's application for her costs to be met out of the estate was dismissed.

The final orders included dismissing the plaintiff's application for her costs to be paid out of the estate, and the rejection of the plaintiff's Calderbank offer due to the necessity for further investigation. The court emphasised that the plaintiff's acceptance of the Calderbank offer would have resulted in her bearing a disproportionate share of the costs, which was deemed inappropriate under the circumstances.