Shorten v Shorten - [2002] NSWCA 73

CITATION: SHORTEN v SHORTEN [2002] NSWCA 73

FILE NUMBER(S): CA 40308/01

HEARING DATE(S): 5 March 2002

JUDGMENT DATE:
5 March 2002

PARTIES :

Noel William SHORTEN v Stanley Alexander SHORTEN

JUDGMENT OF: Mason P at 1; Meagher JA at 58; Sheller JA at 59

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : 108772/99

LOWER COURT
JUDICIAL OFFICER : Foster AJ

COUNSEL: Appellant: J R Wilson
Respondent: M A Bradford

SOLICITORS: Appellant: Harris Wheeler
Respondent: Duncan MacLean

CATCHWORDS: TESTAMENTARY CAPACITY - knowledge and approval of executed will by testator - application of principles to facts by trial judge - testator suffered a stroke and whether physical and mental consequences adversely affected her capacity - capacity of testator's memory and ability to give clear instructions - executor bore onus of establishing testamentary capacity - if a duly executed will is rational on the face of it there is a rebuttable presumption that the testator had testamentary capacity. (ND)

LEGISLATION CITED:

CASES CITED:

DECISION: Appeal dismissed with costs.

CA 40308/01

MASON P
MEAGHER JA
SHELLER JA
Tuesday 5 March 2002

Noel William SHORTEN v Stanley Alexander SHORTEN

JUDGMENT

1 MASON P: The deceased, Florence Minnie Shorten, died on 6 February 1999 aged eighty-eight. Foster AJ granted probate in solemn form of her will made on 25 January 1996. He rejected the claim that she lacked testamentary capacity raised by the appellant Noel Shorten who propounded a 1979 will that the 1996 will had revoked, (see Shorten v Shorten [2001] NSWSC 100).

2 The deceased and her husband Harold had four children: Jocelyn (born in 1940), Kevin (born in 1941), Noel (born in 1944) and Stanley (born in 1947). Harold died in 1995 and Kevin died in 2000 after the commencement of the proceedings.

3 The family home in Nundle had been bought by Harold in 1943. Mr and Mrs Shorten ran a smallish grazing business involving their children in various degrees and at different times. Initially it was on a property known as Fernview purchased by Harold in 1952. In 1979 Harold, the deceased and Noel acquired a further property Hillview, holding as tenants in common in equal shares. The three of them operated that property in a partnership called Hillview Pastoral Company. The deceased’s 1979 will had appointed the three sons as executors and given her share in Hillview to Noel; her share in the Hillview Pastoral Company partnership to her four children equally; with the residue passing to Stanley, Kevin and Jocelyn. This will was revoked by the 1996 will if it was valid.

4 Foster AJ found that the family reached an understanding in 1979 to the effect that Kevin and Stanley would ultimately receive Fernview and Noel would receive Hillview. Each of the brothers promised the deceased at that time that they would not stand in the way of this plan being implemented.

5 From 1979 onwards there were disputes between the three sons over matters associated with the farming activities and…

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 Shorten v Shorten

Details

AGLC: Shorten v Shorten [2002] NSWCA 73
Case: [2002] NSWCA 73
Decision Date: 5 March 2002

CaseChat Overview and Summary

The appeal concerned the validity of a will made by the deceased, Mrs. Shorten. The appellant, Mr. Shorten, challenged the will on the grounds that the deceased lacked testamentary capacity at the time of its execution. The primary issue before the court was whether the deceased possessed the requisite knowledge and approval of the contents of her will, given the physical and mental consequences of a stroke she had suffered.

The court was required to determine whether the trial judge had erred in finding that the deceased had testamentary capacity. This involved assessing whether her memory and ability to give clear instructions were sufficiently impaired by her stroke to negate her capacity to understand and approve the will. The executor bore the onus of establishing that the deceased had the necessary testamentary capacity.

The court affirmed the established legal principle that where a duly executed will is rational on its face, there is a rebuttable presumption of testamentary capacity. The judges considered the evidence presented regarding the deceased's physical and mental state following her stroke and concluded that the trial judge had correctly applied the principles of testamentary capacity to the facts. The appeal was accordingly dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	SHORTEN v SHORTEN [2002] NSWCA 73
FILE NUMBER(S):	CA 40308/01
HEARING DATE(S):	5 March 2002
JUDGMENT DATE:	5 March 2002
PARTIES :	Noel William SHORTEN v Stanley Alexander SHORTEN
JUDGMENT OF:	Mason P at 1; Meagher JA at 58; Sheller JA at 59

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	108772/99
LOWER COURT JUDICIAL OFFICER :	Foster AJ

COUNSEL:	Appellant: J R Wilson Respondent: M A Bradford
SOLICITORS:	Appellant: Harris Wheeler Respondent: Duncan MacLean
CATCHWORDS:	TESTAMENTARY CAPACITY - knowledge and approval of executed will by testator - application of principles to facts by trial judge - testator suffered a stroke and whether physical and mental consequences adversely affected her capacity - capacity of testator's memory and ability to give clear instructions - executor bore onus of establishing testamentary capacity - if a duly executed will is rational on the face of it there is a rebuttable presumption that the testator had testamentary capacity. (ND)
LEGISLATION CITED:
CASES CITED:
DECISION:	Appeal dismissed with costs.