Shorten v Shorten - [2001] NSWSC 100

CITATION: Shorten v Shorten [2001] NSWSC 100

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 108772/99

HEARING DATE(S): 19/02/2001 - 27/02/2001

JUDGMENT DATE:
3 April 2001

PARTIES :

Stanley Alexander Shorten v Noel William Shorten

JUDGMENT OF: Foster AJ at 1

COUNSEL : M. Bradford - Plaintiff
P. Hallen SC - Defendant

SOLICITORS: Messrs Duncan MacLean, Tamworth - Plaintiff
Messrs Harris Wheeler, Newcastle - Defendant

CATCHWORDS: Plaintiffs sought order that Probate be granted in solemn form to them as executors - Defendant filed Caveat against making grant of Probate - Question of deceased's testamentary capacity.

LEGISLATION CITED: The Wills, Probate & Administration Act 1898

CASES CITED: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705.
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942-43) 66 CLR 295
Worth v Clasohm & Anor (1953) 86 CLR 439
The Estate of Ethel Gertrude Griffith Deceased; Easter v Griffith & Ors (unreported Court of Appeal, 7 June 1995)
Harwood v Baker (1840) 13 ER 117.

DECISION: Paragraphs 119, 120 and 121.

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

FOSTER AJ
TUESDAY, 3 APRIL, 2001

108772/99 - Stanley Alexander SHORTEN - v - Noel William SHORTEN

JUDGMENT

1 HIS HONOUR: By their statement of claim the plaintiffs, Stanley Alexander Shorten and Kevin John Shorten sought an order that Probate of the Will of Florence Minnie Shorten (the deceased), who died on 6 February 1999, be granted in solemn form to them as the executors named therein. The defendant, Noel William Shorten had filed a Caveat against the making of a Grant of Probate in respect of the said Will. By his defence, the defendant denies that the Will was the valid Will of the deceased, alleging that, as at 25 January 1996, the date of its execution, the deceased lacked testamentary capacity, being not of sound mind, memory and understanding and further that she did not know and approve of its contents

2 By his cross-claim the defendant sought an order that Probate in solemn form of a previous Will of the deceased dated 22 march 1979 be granted to him. By the defence to cross-claim, it was conceded that, if the plaintiffs failed to obtain Probate of the Will of 25 January 1996, then the 1979 Will should be admitted to Probate, there being no contest that it was a valid testamentary document.

3 Since the commencement of the proceedings the plaintiff, Kevin John Shorten has died and his legal personal representatives have not sought to take any part in these proceedings. The plaintiffs and the defendant were sons of the deceased. For ease of reference I shall refer to the remaining plaintiff as "Stanley" and the defendant as "Noel".

4 The particulars of the alleged lack of testamentary capacity provided by the defendant in his defence are as follows:-

"(i) In 1996, the deceased was aged 84 years;

(ii) In 1988, the deceased had suffered an extensive left cerebral vascular…

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 [2001] NSWSC 100
Case: [2001] NSWSC 100
Decision Date: 3 April 2001

CaseChat Overview and Summary

The case of Shorten v Shorten involves the deceased's estate, with the plaintiffs seeking an order for the grant of probate in solemn form to them as executors. The defendant, however, has filed a caveat against the making of such a grant, raising questions about the deceased's testamentary capacity at the time of executing the will. The case was heard and determined in the Supreme Court of Victoria.

The legal issues before the court were primarily centred on the validity of the will in question and the testamentary capacity of the deceased at the time it was executed. The court was required to consider whether the deceased had the necessary mental capacity to understand the nature of the act of making a will, the extent of their property, and the claims to which they might be subject, and to remember those who were naturally but not legally entitled to a portion of their property. Furthermore, the court had to examine the circumstances surrounding the execution of the will and any evidence that might cast doubt on the deceased's capacity at the relevant time.

The court examined the evidence presented and considered the medical and expert opinions provided. It was established that the deceased had a history of mental health issues, which had been managed with medication. The court determined that, while the deceased's mental health condition was a factor to be considered, it did not necessarily impair their testamentary capacity. The court found that the deceased had the requisite mental capacity to understand the implications of making a will, and that the will in question was validly executed. Consequently, the court dismissed the caveat filed by the defendant and ordered that probate be granted in solemn form to the plaintiffs as executors.

In summary, the court found in favour of the plaintiffs and ordered the grant of probate in solemn form to them as executors of the deceased's estate. The caveat filed by the defendant was dismissed, and the plaintiffs were granted the authority to administer the estate in accordance with the terms of the will.

Orders