Re McGilchrist (dec'd) (No 2)

The case of Re McGilchrist (dec'd) (No 2) concerns the issue of costs arising from a previous application related to the rectification and interpretation of the will of the deceased, Joyce McGilchrist. The applicants, who are the executors of the estate, sought rectification and declaratory relief regarding the descriptions of parcels of land bequeathed by the will. The first respondent contested the application, arguing that the parcels of land in question should fall to residue due to the land descriptions differing from those in the will because of resumptions and a typographical error. The primary application resulted in orders that the parcels of land would pass according to the testator's intentions, and the applicants were entitled to have their costs paid out of the estate. The central legal issues were whether the first respondent should pay the applicants' costs and whether her own costs should be paid from the estate.

The court examined the position of the first respondent, who had an interest in the estate but whose stance during the principal application was deemed untenable. The court held that the first respondent's argument that the gifts of land should fail due to the resumptions was baseless, and her position was not reasonable. Consequently, the court ruled that the first respondent should not have her costs paid from the estate. However, the applicants faced a will with a typographical error and land descriptions differing from those in the will, which justified seeking court direction. While it might have been preferable for the applicants to secure the consent of all beneficiaries, the court found it prudent to allow the application given the circumstances. The court concluded that the estate should bear the costs of the application but not the costs of the first respondent.

In conclusion, the court ordered that the applicants' costs be paid from the estate on an indemnity basis. The court further ruled that there should be no order as to the costs of the first respondent. The rationale was that while the first respondent's position was not reasonable and should not be compensated from the estate, the estate should still bear the costs of the application due to the typographical error and the differing land descriptions in the will. The first respondent's costs were not to be paid from the estate, reflecting the court's view that her position was not reasonable.