Re: Ryan; Williams v Ryan

[1998] VSC 109

SUPREME COURT OF VICTORIA

PROBATE JURISDICTION

Not Restricted

No. Prob. 14 of 1997

In the Matter of	Plaintiffs
the Will of EILEEN ELSIE RYAN (Deceased)
ROBYN JOAN WILLIAMS and JUNE HOWDEN
v
BRUCE WILLIAM RYAN	Defendant

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JUDGE:	Byrne, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 1998
CASE MAY BE CITED AS:	Re: Ryan; Williams v Ryan
MEDIA NEUTRAL CITATION:	[1998] VSC 109

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WILLS - Testamentary capacity - application for probate refused - cost to be paid out of estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.F. Gillies	Graham Seivers & Lee
For the Defendant	Ms C.H. Sparke	McMahon & Treby

HIS HONOUR:

1. Further to my judgment in this matter given on 9 September 1998, I invited parties to present written submissions as to the order for costs.

2. Having considered these written submissions I am persuaded that the order I should make is that which was made in In the Will of Seivers (1887) 13 VLR 573 at 586. In the case which I have determined, although I was not persuaded that the deceased had testamentary capacity, the evidence in support of her capacity was such that a reasonable executor might properly have propounded the will.

3. Accordingly, I will make the following order:

1.	Costs of the plaintiffs and of the defendant be paid out of the estate of the deceased provided that the ascertainment of such costs and the provisions for their payment be deferred until a representative of the deceased's estate is constituted.
2.	Liberty to either party to apply to the court as to such costs as they may be advised.

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