Tolbert v Hicklin

In Tolbert v Hicklin, the plaintiff, Cameron Lee Tolbert, sought a grant of letters of administration with the will of Kenneth Hicklin, dated 9 August 1979. The defendant, the estate of Kenneth Hicklin, disputed the validity of the will and counterclaimed for a declaration that an earlier will dated 2017 should be admitted to probate. Tolbert made a successful Calderbank offer which the defendant rejected. The court had to determine whether the costs incurred by the parties should be paid out of the deceased's estate on an indemnity basis.

The primary legal issue was whether the costs of the parties should be paid out of the deceased's estate on an indemnity basis. The court had to consider whether the defendant reasonably propounded the 2017 will and whether the plaintiff was entitled to indemnity costs due to the unsuccessful counterclaim and the successful Calderbank offer. The court also needed to assess the overall fairness of the costs order in light of the defendant's rejection of the Calderbank offer.

The court found that the defendant did not reasonably propound the 2017 will, as the deceased did not execute it in the hospital as instructed. Given that Tolbert was successful at trial and the defendant had rejected the Calderbank offer, the court held that Tolbert was entitled to indemnity costs. The court considered it just and equitable to order the costs of both parties to be paid out of the deceased's estate on an indemnity basis, taking into account the unsuccessful counterclaim and the defendant's rejection of the Calderbank offer.

Accordingly, the court dismissed the counterclaim, granted Tolbert letters of administration with the will dated 9 August 1979, and ordered that the costs of the proceeding be paid out of the estate on an indemnity basis.