Shorten v Shorten (No 2)

This case concerned an appeal regarding costs in contested probate proceedings. The dispute arose after the testator suffered a stroke, leading to a challenge to the validity of their will. The appeal was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in ordering the unsuccessful party opposing probate to pay the costs of the proceedings. Specifically, the court had to determine if the trial judge had correctly applied the principles regarding costs in probate matters, particularly in light of the testator's medical condition and the evidence presented.

The Court of Appeal, in its supplementary reasons, varied the costs order made at first instance. Owen J found that the trial judge had erred in relying on *Re Cutliffe’s Estate* to deny the unsuccessful party costs out of the estate, as the facts of the present case were distinguishable. In *Cutliffe’s Case*, the evidence disbelieved was that of the parties opposing probate on grounds of undue influence, whereas here, the evidence of a key witness had not been accepted. Menzies J also agreed that the trial judge had erred in following *Cutcliffe*, and would have ordered the plaintiffs' costs to be paid out of the estate. However, this was a dissenting view. The majority of the court, agreeing with Mason P, found that the trial judge had not erred in principle in concluding that the testator's condition did not cause the litigation, and that the case fell within an exception to the general rule that costs follow the event.

The appeal as to costs was ultimately dismissed, with the court varying the initial costs order.