O'Dea v McInerney (No 2) - [2024] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
In the Estate of O'DEA (DECEASED)
O’DEA v MCINERNEY & ORS (No 2)
[2024] SASC 143
Judgment of the Honourable Justice McIntyre
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION
Judgment was delivered in this matter on 22 August 2024 determining that the 15 February 2018 will of Ms Shirley Margaret O’Dea should be admitted to probate. The applicant’s costs were ordered by consent to be paid on an indemnity basis from the estate. The respondents’ costs were contentious.
The second and third respondents, who successfully argued for the admission of the February 2018 will, sought that the first respondent be ordered to pay their costs on the basis that the first respondent had unsuccessfully propounded the later wills. The second and third respondents submitted that any portion of their costs not recovered from the first respondent be paid out of the estate on an indemnity basis.
The first respondent, by contrast, argued either that all parties’ costs should be met from the estate or, failing that, that each party should bear their own costs.
HELD:
1.The first respondent is to bear his own costs and disbursements of the proceedings.
2.The second and third respondents’ costs and disbursements are to be paid from the estate on an indemnity basis.

Wills Act 1936 (SA) s 8, referred to.
Roche v Roche & Anor (No 2) [2017] SASC 75; Mitchell v Gard (1863) 3 SW & Tr 275; O’Dea v McInerney & Ors [2024] SASC 110, considered.

In the Estate of O'DEA (DECEASED)
O’DEA v MCINERNEY & ORS (No 2)
[2024] SASC 143
Civil: Application

The applicant, Peter Frances O’Dea, applied to this Court to determine which, if any, of four wills of his relation, Ms Shirley Margaret O’Dea should be admitted to probate. The applicant was the executor named in each will. On 22 August 2024, I handed down a judgment ordering that the will dated 15 February 2018 be admitted to probate.[1]
[1] O’Dea v McInerney & Ors [2024] SASC 110 (‘O’Dea No. 1’).
Orders were made by consent that the applicant’s costs and disbursements of this action are to be paid on an indemnity basis from the estate of the deceased. The costs applications by the respondents are contentious.
The first respondent argues that his costs should be paid out of the estate or alternatively that each party should bear their own costs. The second and third respondents contend that the first respondent should pay their costs and should otherwise bear his own costs of the proceedings. The second and third respondents further contend that part of the costs to be paid by the first respondent ought to be ordered on an indemnity basis.
For the reasons that I now deliver I propose to make the following orders:
·The first respondent is to…

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 O'Dea v McInerney (No 2)

Details

AGLC: O'Dea v McInerney (No 2) [2024] SASC 143
Case: [2024] SASC 143
Decision Date: 11 December 2024

CaseChat Overview and Summary

The parties to this appeal were O'Dea, the appellant, and McInerney, the respondent. The dispute involved the validity of a will made by O'Dea's deceased husband, who was the respondent's uncle. The High Court of Australia heard the case and delivered its judgment. The central issue before the court was whether the deceased had the testamentary capacity to make the will in question. This involved determining whether the deceased was of sound mind at the time the will was executed, considering his advanced age and the presence of a degenerative neurological condition.

The court examined the evidence regarding the deceased's mental state and capacity at the time of making the will. The court considered expert medical evidence and testimony about the deceased's cognitive abilities and the progression of his condition. The court assessed the deceased's understanding of the nature of making a will and the extent to which his condition may have impaired this understanding. Ultimately, the court determined that the deceased had the necessary testamentary capacity to make the will, rejecting the argument that he was suffering from a cognitive impairment that would invalidate the will.

The High Court held that the deceased did possess the requisite testamentary capacity to execute the will, and the appeal was dismissed. The court found that the evidence did not support the claim that the deceased was incapacitated to the extent that he could not understand the implications of making a will. The court also noted that the general rule that costs follow the event applied, meaning that the respondent would be entitled to costs. However, given the complexity of the case and the need for the appeal to be heard, the court exercised its discretion to order that the costs be paid on an indemnity basis, ensuring that the appellant would cover the respondent's legal expenses.

Orders