Baird v Smee

[2000] NSWCA 253

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Baird & Anor v Smee [2000]  NSWCA 253

FILE NUMBER(S):
40635/99

HEARING DATE(S):           13 March 2000

JUDGMENT DATE:            11/09/2000

PARTIES:
Lorraine Noeline BAIRD - First Appellant
James Robert McDONNELL - Second Appellant
Dolores SMEE - Respondent

JUDGMENT OF:      Mason P Handley JA Giles JA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):        EQ  2954/98

LOWER COURT JUDICIAL OFFICER:     Master Macready

COUNSEL:
C J Bevan & A Iuliano - Appellants
P H Blackburn-Hart - Respondent

SOLICITORS:
Turner Freeman, Sydney - Appellants
Warren McKeon Dickson, Engadine - Respondent

CATCHWORDS:
TESTAMENTARY DISPOSITION - mutual wills made - one testator died - other testator changed will - other testator died - whether trust for beneficiaries under original will - must find agreement not to revoke original wills, intended to have legal effect - fact made mutual wills does not of itself establish requisite agreement - agreement not to be lightly inferred - insufficient evidence from which requisite agreement can be inferred.  D

LEGISLATION CITED:

DECISION:
(1)  Extend time to apply for leave to appeal and grant leave to appeal;  (2)  Appeal dismissed with costs.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40635/99

EQ  2954/98

MASON P

HANDLEY JA

GILES JA

Monday 11 September 2000

BAIRD & ANOR v SMEE

JUDGMENT

1     MASON P:  I have had the benefit of reading the judgment of Giles JA.  I agree with the orders proposed and with his Honour's reasons.

2     Mr Derek McDonnell and Mrs Gwendoline McDonnell made separate mutual wills on 12 March 1986.  Each testator appointed the Public Trustee as executor and trustee and disposed of the entire estate in favour of the other “absolutely” if he or she survived by 30 days.  If this did not happen residue was to be divided equally between the children of Derek and Gwendoline's former marriages and their respective families.  The wills were not expressed to be mutual wills, nor do they contain any express provision relevant to non-revocation.

3     There is no evidence as to the age of Derek or Gwendoline in 1986 beyond what can be inferred from the fact that Derek's first marriage was dissolved in 1963 at a time when there were two children of that marriage and the fact that Derek and Gwendoline married each other in 1967.

4     Derek died in 1992.  Neither of the 1986 wills had been revoked by that time.  Upon Derek’s death his share in a jointly owned home unit at Eastlakes passed to his widow.  Upon her surviving him by 30 days, approximately $20,000 also passed to her under the 1986 will.  Almost a year after Derek’s death, Gwendoline made a new will revoking her 1986 will and leaving her entire estate to the two children of her first marriage (ie to the exclusion of her two stepchildren, the appellants).  Gwendoline died in 1996.

5     To succeed in their claim, the appellants must establish that Derek and Gwendoline had agreed not…