SHORTEN v SHORTEN [2002] NSWCA 73

New South Wales Court of Appeal

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 108772/99 FILE NUMBER(S) : LOWER COURT Foster AJ JUDICIAL OFFICER :

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.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 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 latterly the administration of their father's estate. Each of the four children nevertheless maintained contact with their parents with Noel continuing to live at home. His three siblings married and left the family home at Nundle at different times. 6 The deceased suffered a severe stroke in July 1988. Before that she had been a fit, strong-willed woman who, as well as maintaining a family, played a significant role in running the grazing properties, particularly Hillview. Between November 1988 when she was discharged from Tamworth Base Hospital and her death in 1999 she resided in the Peel Nursing Home in Tamworth. 7 In June 1989 Harold sold Fernview for $185,000. This of course meant that it would not eventually go to Stanley and Kevin as the 1979 arrangement had contemplated. The sale proceeds went into Harold's general expenses including the running of Hillview. 8 Shortly thereafter Harold made a new will leaving his one third interest in Hillview and the Hillview Pastoral Company to Noel. This was to be his last will. In 1994 an adjoining property called St Elmo's was purchased by Noel with $50,000 financial assistance from Harold. Harold also provided $50,000 for the purchase of a new tractor for Hillview. Whether it became Noel's property or that of the Hillview Pastoral Company became a matter of dispute among the brothers after Harold's death. 9 Harold died on 20 June 1995. The three brothers became his executors. Unfortunately there were fights among the brothers lasting until 1996 about the administration of their father's estate, in particular the way that Mrs Shorten's one third interest in Hillview and the partnership were looked after. 10 Harold's will also left a $10,000 legacy to Jocelyn and passed the residue to Stanley and Kevin subject to a life estate in favour of their mother, the deceased. As it turned out there were not enough funds even to pay Jocelyn's legacy and Stanley and Kevin borrowed money to do so. There was associated ill feeling because Stanley and Kevin maintained that the $50,000 advanced by the father to Noel in relation to the purchase of St Elmo's should form part of the father's estate as a debt due from Noel. 11 The upshot of these developments was that the deceased's 1979 will would have passed Hillview to Noel whereas Kevin and Stanley would get little or nothing from the estates of their parents. The deceased's 1996 will which is the subject of these proceedings was a very simple instrument. Its operative clauses were: 1. I hereby revoke all former wills and testamentary dispositions at any time heretofore made by me and declare this to be my last will and testament.