Shorten v Shorten [2001] NSWSC 363

Shorten v Shorten [2001] NSWSC 363

The litigation was not caused by the conduct of the testator, but the defendant had reasonable grounds for opposing the Will because there were genuine concerns about testamentary capacity arising from the deceased's stroke, conflicting medical evidence, and evidence about the taking of instructions. The defendant was therefore relieved of the burden of the plaintiff's costs of the claim, but was not entitled to costs out of the estate and had to bear his own costs and pay the plaintiff's costs of the cross-claim.

Jurisdiction
Australia
Judgment Date
07 May 2001
Procedural Posture
Probate Proceedings / Judgment as to Costs on Written Submissions
Outcome
Probate in solemn form granted; cross-claim dismissed with costs; plaintiff's costs payable out of the estate on an indemnity basis; otherwise no order as to costs.
Legal Topics
['probate in Solemn Form' 'testamentary Capacity' 'costs Out of the Estate' 'reasonable Grounds for Opposing a Will']
['probate' 'succession' 'costs'] ['probate in Solemn Form' 'testamentary Capacity' 'costs Out of the Estate' 'reasonable Grounds for Opposing a Will']

Case Brief

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Procedural Posture

Probate Proceedings / Judgment as to Costs on Written Submissions

Legal Issues

  1. 1 ['Whether the defendant had reasonable grounds for opposing the Will being admitted to Probate.' "Whether the defendant should receive costs out of the estate, be relieved of the burden of costs, or pay the plaintiff's costs."]

Ratio Decidendi

The litigation was not caused by the conduct of the testator, but the defendant had reasonable grounds for opposing the Will because there were genuine concerns about testamentary capacity arising from the deceased's stroke, conflicting medical evidence, and evidence about the taking of instructions. The defendant was therefore relieved of the burden of the plaintiff's costs of the claim, but was not entitled to costs out of the estate and had to bear his own costs and pay the plaintiff's costs of the cross-claim.

Court Disposition

Probate in solemn form granted; cross-claim dismissed with costs; plaintiff's costs payable out of the estate on an indemnity basis; otherwise no order as to costs.

Orders

  • ["That Probate in solemn form be granted of the deceased's Will of 25 January 1996." 'That the cross-claim be dismissed with costs.' "That the plaintiff's costs be paid out of the Estate of the deceased and to be assessed on an indemnity basis." 'Otherwise, no order as to costs.']