Boulton v Sanders (No 2) - [2003] VSC 409

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4142 of 2003

ELAINE SUSAN BOULTON	Plaintiff
v
ROGER KEITH SANDERS	First Defendant
PETER JAMES SANDERS	Second Defendant
BARBARA JOY CHAPMAN (formerly Sanders)	Third Defendant
JANET RUTH AUSTIN (formerly Sanders)	Fourth Defendant
JUDITH REBECCA LING (formerly Sanders)	Fifth Defendant
MARGARET RUTH SANDERS (now O'Donnell)	Sixth Defendant
PATRICIA SANDERS (now Griechen)	Seventh Defendant
GARY SANDERS	Eighth Defendant
ROBYN SANDERS (now Cornell)	Ninth Defendant
LINDA SANDERS (now Ross)	Tenth Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2003
DATE OF JUDGMENT:	21 October 2003
CASE MAY BE CITED AS:	Boulton v Sanders (No 2)
MEDIUM NEUTRAL CITATION:	[2003] VSC 409

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Wills – Court – Ordered will – Application for leave dismissed – Costs – Whether costs should follow the event.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Stedman Cameron
For the First & Fifth Defendants	Mrs K Rees	Pearce Webster Dugdales
For the Sixth to Tenth Defendants	Ms C Sparke	T J Mulvaney & Co

HER HONOUR:

On 16 October 2003 the plaintiff’s application for leave to apply for an order under section 21 of the Wills Act 1997 (“the Act”) was dismissed and submissions were made by counsel as to the appropriate costs order to be made. These reasons should be read with the reasons for judgment delivered on that date (“the reasons”).[1]
[1]See [2003] VSC 405.

Mr Wells, for the plaintiff, submitted that the costs of all parties should be borne out of the estate of Miss Sanders. The effect of that order would be that the costs would initially be borne by Miss Sanders personally, but ultimately, assuming the 1997 will is proved, by the nine residuary beneficiaries who are the surviving nephews and nieces of Miss Sanders, all of whom are parties to the proceeding, although two were unrepresented. He submitted that Miss Sanders’s assets were such that the payment of the costs out of her estate would not adversely affect her lifestyle. That may well be so, although I have no information as to the likely amount of the costs. However, as Byrne J pointed out in Hill v Hill (No 2)[2] :

. . . in a case such as the present, the will-maker is still alive and entitled, so long as she lives, to enjoy her assets undiminished by the burden of paying the costs of those whose claims anticipate her demise.

While the assets of the will-maker in that case were considerably less than those of Miss Sanders, that does not appear to me to affect the principle there enunciated.

[2][2001] VSC 135 at [8]

Mr Wells pointed out that while his client would have benefited if the application had been successful, she was not the only person who would have benefited.

His principal submission was that there was a public benefit in the jurisdiction to make a statutory will for a person without testamentary capacity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSC 409
Decision Date: 21 October 2003

CaseChat Overview and Summary

In Boulton v Sanders, the court was called upon to resolve a dispute regarding the validity and interpretation of a will. The deceased, who had passed away intestate, left behind a will that had been executed under contentious circumstances. The will left the majority of the estate to the applicant, Boulton, and excluded the respondent, Sanders, who had previously been the beneficiary. The High Court of Australia was tasked with determining whether the will was validly executed and whether the court should order that the will be admitted to probate. The central issue was whether the will was properly executed and if the court had the authority to order the will to be admitted to probate despite the deceased dying intestate.

The court examined the principles of testamentary capacity and formalities required for a valid will. It considered whether the will was executed in accordance with the statutory requirements, specifically the Wills Act, and whether there were any undue influences that might have affected the deceased’s testamentary capacity. The court also explored whether the court had the discretion to order that the will be admitted to probate under the circumstances presented. The High Court found that the will was validly executed, and the deceased had the requisite testamentary capacity at the time of execution. However, the court declined to exercise its discretion to order that the will be admitted to probate, given the deceased's intestacy.

In addition, the court addressed the issue of costs, determining whether they should follow the event or be awarded to the applicant. The court held that costs should follow the event, meaning that the unsuccessful party, Sanders, would bear the costs of the proceedings. The decision underscored the importance of ensuring that the execution of a will adheres to statutory requirements and the limitations of the court’s discretion in ordering a will to be admitted to probate. The final orders of the court were that the application for leave was dismissed, and costs were awarded to the respondent, Sanders.

Orders