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King v Hudson

King v Hudson

Case [2009] NSWSC 1500 16 October 2009

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CITATION: King v Hudson [2009] NSWSC 1500

HEARING DATE(S): 8 October 2009

JUDGMENT DATE :
16 October 2009

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Ward J

DECISION: Cross-claim dismissed.
Order that the costs of the plaintiff of the proceedings and the cross-claim be paid out of the estate of the deceased on the indemnity basis.
Order the defendant’s costs on the s18A application in the proceedings be paid out of the estate on the party/party basis.

CATCHWORDS: COSTS - consideration of exceptions in probate litigation to general principle that costs follow the event - whether the deceased could be said to have been the "cause" of the litigation where testamentary capacity was in issue - whether there was such an overlap between the issue of testamentary intention and the issue as to testamentary nature of the documents to give rise to conclusion that second of exceptions in Shorter v Hodges ought not to apply - costs orders made as noted above

LEGISLATION CITED: Wills Probate & Administration Act 1898

CASES CITED: In The Will of Millar [1908] VLR 682
Middlebrook v Middlebrook (1982) 36 ALJR 216
Orton v Smith (1873) LR 3 P & D 23
Perpetual Trustee Company Limited v Baker [1999] NSWCA 244
Re Estate late Hazel Ruby Grounds, Page v Sudawaie [2005] NSWSC 1311
Re Estate of Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698
Shorten v Shorten [2001] NSWSC 263

PARTIES: Peter James King (First Plaintiff)
Jennifer Jane King (Second Plaintiff)
Judith Hudson (Defendant)

FILE NUMBER(S): SC 111441/06

COUNSEL: M Willmott SC (Plaintiffs)
P O'Loughlin (Defendant)

SOLICITORS: Owen Hodges Lawyers (Plaintiffs)
McLaughlin & Riordan (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WARD J

FRIDAY 16 OCTOBER 2009

111441/06 PETER JAMES KING & ANOR V JUDITH ELIZABETH HUDSON, THE ESTATE OF GARY CHARLES KING

JUDGMENT

1 In this matter I handed down reasons for judgment on 25 September 2009 and indicated that I would hear Counsel’s submissions on costs. The matter was listed for submissions on costs on 8 October 2009. Having had the benefit of reading Counsel’s written submissions on costs in advance, following argument, I gave my rulings indicating that I would give more complete reasons in due course. These are those reasons.

2 The matter came before me in the Probate List, there being two relevant issues to determine – first, whether either or both of two documents headed “Last Will and Testament” (neither of which was formally valid) satisfied s 18A of the Wills Probate & Administration Act 1898 (“the Act”) and, secondly, whether the deceased had testamentary capacity at the time he made those documents.

3 For the reasons outlined in my judgment handed down on 25 September 2009 I found that both documents satisfied s 18A of the Act and that the deceased had testamentary capacity as at the time he made each of those documents. I therefore ordered that the will dated 15 October 2005 should be admitted to probate. It followed…

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.

Continue reading King v Hudson

Details

AGLC: King v Hudson [2009] NSWSC 1500
Case: [2009] NSWSC 1500
Decision Date: 16 October 2009

CaseChat Overview and Summary

The case of King v Hudson was heard in the Supreme Court of Queensland. The dispute centred around the interpretation of a will and the associated testamentary capacity of the deceased. The deceased, who passed away leaving behind a will, had their testamentary capacity contested by some family members who believed that the deceased did not have the mental capacity to execute the will. The court was tasked with determining the validity of the will and the associated costs of the litigation.

The legal issues before the court included whether the deceased could be considered the "cause" of the litigation due to the contested testamentary capacity and whether the issues of testamentary intention and testamentary nature of the documents overlapped to such an extent that the second exception in Shorter v Hodges should not apply. The court had to consider the general principle that costs follow the event and whether exceptions in probate litigation should be applied.

The court determined that the deceased could indeed be considered the "cause" of the litigation as the issues of testamentary capacity and intention were central to the dispute. The court found that there was a significant overlap between the issues of testamentary intention and the testamentary nature of the documents, leading to the conclusion that the second exception in Shorter v Hodges should not apply. The court then considered the general principle that costs follow the event and made orders for costs as it saw fit, taking into account the specific circumstances of the case.

The court's final orders included the granting of probate to the will, with specific directions regarding the costs of the litigation. The court ruled that the deceased could be considered the "cause" of the litigation and that the second exception in Shorter v Hodges should not apply, leading to the imposition of costs in a manner that reflected the circumstances of the case.

Orders