Shorten v Shorten

[2002] NSWCA 73

NSW Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Wills
3. › Testamentary capacity
4. › Knowledge and approval of will by testator
5. › Testator suffering from stroke
6. › Expressive and receptive dysphasia
7. › Whether physical and mental consequences adversely affected capacity
8. › Application of Banks v Goodfellow principles
1. Succession
2. › Wills
3. › Testamentary capacity
4. › Presumption of testamentary capacity
5. › Duly executed will rational on its face
6. › Rebuttable presumption
7. › Onus on executor propounding will
1. Succession
2. › Wills
3. › Testamentary capacity
4. › Exclusion of natural objects of bounty
5. › Whether failure to provide for daughter reflected adversely on capacity
6. › Whether testator capable of recollecting existence of daughter and understanding her claim
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Advantage of trial judge in observing witnesses
5. › Whether appellate court should overturn factual findings

Quick Take

A testator who has suffered a severe stroke causing expressive and receptive dysphasia and visual impairment may nonetheless have testamentary capacity to make a simple will, where lay and medical evidence establishes that the testator could understand what was said with patience, could communicate wishes through words and gestures, retained pre-stroke memory, and was capable of forming and expressing testamentary intentions. The exclusion of a natural object of bounty does not reflect adversely on testamentary capacity where the testator was capable of recollecting that person's existence and understanding their claim.