Re: Ryan; Williams v Ryan
[1998] VSC 109
•23 October 1998
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:
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.
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.
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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