Church v Mason [2013] NSWCA 481

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Church v Mason [2013] NSWCA 481 Hearing dates: 12 December 2013 Decision date: 24 December 2013 Before: Meagher JA at [1]; Barrett JA at [46]; Emmett JA at [47] Decision: (1) Appeal dismissed. (2) Appellant pay the respondent's costs of the appeal. (3) To the extent that the respondent's costs are not otherwise satisfied by order 2, those costs are to be paid out of the estate of Stanley William Church on the indemnity basis. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: SUCCESSION - wills, probate and administration - will of elderly testator made and executed in circumstances arousing suspicion - whether primary judge erred in concluding testator knew and approved of contents of will Cases Cited: Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 Fuller v Strum [2002] 2 All ER 87 Hoff v Atherton [2004] EWCA Civ 1554; All ER (D) 314 Kozak v Berwecki [2008] NSWSC 39 Nock v Austin [1912] HCA 73; 25 CLR 519 Tobin v Ezekiel [2012] NSWCA 285 Tyrrell v Painton [1894] P 151 Wintle v Nye [1959] 1 WLR 284 Category: Principal judgment Parties: Robert Church (Appellant) James Herbert Mason as executor of the estate of the late Marjorie Elaine Mason (Respondent) Representation: Counsel: M S Willmott SC, S J Chapple (Appellant) L Ellison SC, G J Smith (Respondent) Solicitors: Armstrong Legal, Newcastle (Appellant) GP Legal, Dee Why (Respondent) File Number(s): 2012/394764 Decision under appeal Jurisdiction: 9111 Citation: Estate of Stanley William Church [2012] NSWSC 1489 Estate of Stanley William Church [2012] NSWSC 1563 Date of Decision: 2012-12-06 00:00:00 Before: White J File Number(s): 2010/46691