Shorten v Shorten [2001] NSWSC 100

New South Wales Supreme Court

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 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705. Banks v Goodfellow (1870) LR 5 QB 549 CASES CITED : 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 accident, which left her with a right sided paralysis and severe expressive dysphasia with a receptive component;