Thomas v Nash (No 2)

The case of Thomas v Nash (No 2) involved a dispute over the validity of a will, with the plaintiffs, the executors and beneficiaries of the will, seeking costs from the defendant on an indemnity basis. The matter was heard in the Supreme Court of Queensland. The plaintiffs sought to recover their costs from the defendant, who had unsuccessfully challenged the validity of the will. The central legal issues were whether the defendant's raising of the issue of testamentary capacity was reasonable, whether the raising of the issue of undue influence was reasonable, and what form of costs order was appropriate where one issue was reasonably raised but another was not.

The court considered the general principles of costs in probate litigation, particularly where the litigation was not caused by the deceased. It was held that the defendant's raising of the issue of testamentary capacity was reasonable, but the raising of the issue of undue influence was not. The court found that the defendant's conduct in prolonging the case was unreasonable, and that the plaintiffs were entitled to recover four-fifths of their costs of the action as between party and party from the defendant. The court ordered the defendant to pay four-fifths of the plaintiffs' costs of the action, reflecting the partial reasonableness of the defendant's litigation.