Shorten v Shorten [2001] NSWSC 363

New South Wales Supreme Court

CITATION : Shorten v Shorten [2001] NSWSC 363 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 108772/99 HEARING DATE(S) : (Written submissions re costs) JUDGMENT DATE : 7 May 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 : Costs. LEGISLATION CITED : The Wills, Probate & Administration Act 1898 CASES CITED : Public Trustee v Wilson, unreported 13 November 1985. DECISION : Refer paragraph 9.

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

FOSTER AJ

MONDAY 7 MAY, 2001 108772/99 - Stanley Alexander SHORTEN - v - Noel William SHORTEN JUDGMENT (as to costs) 1 HIS HONOUR: At the conclusion of my reasons for judgment in this matter I expressed my inclination, at that point, to order that the costs of all parties should be paid out of the Estate. However, as I had not heard argument on costs, I refrained from expressing a concluded view. Since then the parties have provided me with written submissions on this aspect of the case. 2 I have carefully considered those submissions and have decided that I should change my earlier provisional view. 3 Powell J in Public Trustee v Wilson (unreported, 13 November 1985) after stating the basic rule that, in general, costs would follow the event, said: "To that basic rule there are a number of recognised exceptions, of which, for present purposes, two have been suggested as being relevant to the circumstances of the present case. They are (1) where the litigation has been caused by the conduct of the testator, the unsuccessful defendant may be relieved of the burden of costs, and, at times, may be awarded his costs out of the estate; and (2) where there are circumstances which afford reasonable grounds for opposing a Will, the unsuccessful defendant, although not usually awarded his costs out of the estate, will usually be relieved of the burden of costs." 4 This is not a case where it can be suggested that the litigation was caused by the conduct of the testator. Indeed no such suggestion is made. Accordingly, the question whether some special cost order should be made in favour of the unsuccessful defendant falls for determination on the basis of whether there were circumstances which afforded reasonable grounds for the defendant's opposition to the Will's being admitted to Probate. 5 It is put on behalf of the plaintiff that no such reasonable grounds have been shown by the defendant and that he should bear the whole cost of the proceedings. I turn my attention to this question. 6 The case was a difficult and complex one. It occupied eight days and required the evaluation of conflicting lay evidence and difficult and disputed medical evidence. There can be no doubt that, at the outset, there was concern as to whether the deceased had testamentary capacity. Her treating doctor expressed conflicting views about the matter. The affidavit evidence of the solicitor taking instructions and drafting the Will was, until it was expanded and evaluated in his oral testimony, capable of raising concerns as to the capacity of the deceased to give instructions in the form in which they were recorded. Indeed, it was necessary to have regard to the medical evidence and the evidence of other lay witnesses to assist in the understanding of and acceptance of the evidence of the solicitor. 7 Although the defendant attended, with a solicitor, upon his mother in an attempt to get her to change her Will in circumstances which do him little credit, I am not prepared to hold that this incident establishes that he had a belief that his mother certainly had testamentary capacity. Having regard to the severe impact upon her of the stroke, there were grounds for doubting whether such capacity existed. 8 With some hesitation, I have come to the view that the defendant had grounds for opposing the Will. However, I have also come to the conclusion that my original inclination was over-generous towards him. In all the circumstances I do not think he has established an entitlement to an award of costs in his favour out of the Estate. However, I am satisfied that it is reasonable that he "be relieved of the burden of costs". I consider, however, that he should be required to bear his own costs of the claim. He should pay the plaintiff's costs of the cross-claim.