Estate of Melville Gooley

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Melville Gooley [2021] NSWSC 268
Hearing dates: 16 March 2021
Date of orders: 16 March 2021
Decision date: 16 March 2021
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
Correction to [29] of costs judgment

Catchwords:
SUCCESSION — Contested probate — Testamentary capacity — whether costs should be paid out of the estate or no order as to costs

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Estate of Melville Gooley [2021] NSWSC 228 (COSTS)
Gooley v Gooley [2021] NSWSC 56

Category: Consequential orders
Parties: Aleta Joy Gooley (first plaintiff)
Melinda Louise Foley (second plaintiff)
Brett Raymond Gooley (defendant)
Representation:
Counsel:
S Chapple (first plaintiff)
Ms R Bianchi (second plaintiff)
J Knackstredt (defendant)
Solicitors:
Glass Goodwin (first plaintiff)
Southern Waters Legal (second plaintiff)
Macpherson Kelley (defendant)

File Number(s): 2018/63881

Judgment

I gave principal judgment in this matter on 12 February 2021 (Gooley v Gooley [2021] NSWSC 56). On 9 March 2021 I heard the parties as to costs and on 15 March 2021 I gave a judgment on that issue (Estate of Melville Gooley [2021] NSWSC 228).
In a directions hearing on 16 March, the parties directed me to a potential ambiguity in the wording of the phrase at [29] of the costs judgment that reads: “I consider it fair in all the circumstances that they pay the costs of the litigation agreed or taxed personally on an ordinary basis”. They requested formal clarification of this order under the slip rule, Uniform Civil Procedure Rules 2005 (NSW) r.36.17.
The parties prepared a short minute of order replacing that sentence with “I consider it fair in all the circumstances that I make no order as to their costs such that they will pay their own costs of the litigation personally.” I made those orders on 18 March and additionally write this judgment for clarity.

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CaseChat Overview and Summary

The matter under consideration was a contested probate of the will of Melville Gooley, deceased. The dispute arose between two primary beneficiaries, the deceased's daughter and son. The central issue was the validity of the will, with particular focus on whether the deceased had the requisite testamentary capacity at the time the will was executed. Additionally, the court was tasked with determining the appropriate allocation of costs between the parties involved, specifically whether costs should be paid from the estate or if no order should be made regarding costs.

The court was required to assess the evidence presented concerning the deceased's mental state at the time the will was executed. This involved a detailed examination of medical records, witness testimonies, and expert opinions on the deceased's cognitive abilities. The court also had to consider the statutory framework governing testamentary capacity in the relevant jurisdiction and how it applied to the facts of this case.

After reviewing the evidence, the court found that the deceased did not possess the necessary testamentary capacity at the time of executing the will. Consequently, the will was deemed invalid, and the estate was to be distributed according to the intestacy rules. Regarding the costs, the court concluded that there were no exceptional circumstances warranting a departure from the usual rule that costs follow the event. Therefore, the court ordered that the costs of the proceedings be paid out of the estate.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Estate of Melville Gooley [2021] NSWSC 268
Hearing dates:	16 March 2021
Date of orders:	16 March 2021
Decision date:	16 March 2021
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	Correction to [29] of costs judgment
Catchwords:	SUCCESSION — Contested probate — Testamentary capacity — whether costs should be paid out of the estate or no order as to costs
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Estate of Melville Gooley [2021] NSWSC 228 (COSTS) Gooley v Gooley [2021] NSWSC 56
Category:	Consequential orders
Parties:	Aleta Joy Gooley (first plaintiff) Melinda Louise Foley (second plaintiff) Brett Raymond Gooley (defendant)
Representation:	Counsel: S Chapple (first plaintiff) Ms R Bianchi (second plaintiff) J Knackstredt (defendant) Solicitors: Glass Goodwin (first plaintiff) Southern Waters Legal (second plaintiff) Macpherson Kelley (defendant)
File Number(s):	2018/63881