Baird v Smee - [1999] NSWSC 759

CITATION: Baird v Smee [1999] NSWSC 759

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2954/98

HEARING DATE(S): 12/07/99

JUDGMENT DATE:
3 August 1999

PARTIES :

Lorraine Noeline Baird & Anor v Dolores Smee

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr C.J. Bevan for the plaintiffs
Mr P. Blackburn-Hart for the defendant

SOLICITORS: Turner Freeman for the plaintiffs
Warren McKeon Dickson for the defendant

CATCHWORDS: Wills. Mutual wills. Whether there existed sufficient facts to imply a condition that the wills would not be revoked without notice. Held in the circumstances that the condition should not be implied.

CASES CITED: Birmingham v Renfrew (1936) 57 CLR 666
Re Newey (Decd) (1994) 2NSWLR 590 at 593
Re Goodchild (1997) 1 WLR 1216 at 1225
Hubbard v Mason Santow J unreported 9/12/97
Hudson v Gray (1927) 39 CLR 473 at 487
Brigg v Queensland Trustees Ltd (1990) 2 Qd R 11 at 14
Low v Perpetual Trustees WA Ltd (1995) 14 WAR at 42-3
Aslan v Kopf NSW Court of Appeal 16/05/95

DECISION: Para 26

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Tuesday 3 August 1999
2954/98 LORRAINE NOELINE BAIRD & ANOR v DOLORES SMEE

JUDGMENT
1 MASTER: This is the hearing of these proceedings which concerns a claim as to the making of what are said to be mutual wills by Derek James McDonnell and Gwendoline McDonnell. The matter originally came before me for the purposes of hearing the defendant’s Notice of Motion filed on 8 June 1999 seeking dismissal of a Statement of Claim both under Part 15 Rule 26 and Part 13 Rule 5. With the concurrence of the parties that motion was stood over to the final hearing of the suit which was brought on expeditiously. A judge of the court has referred the whole of the proceedings to a Master for his determination.
2 Derek James McDonnell and Gwendoline McDonnell married on 13 May 1967. Each had been married before and each had two children from an earlier marriage at the time of their marriage to each other. They each made wills on 12 November 1986. Their wills were not expressed to be mutual wills. They appointed the Public Trustee as Executor. The depositive part of the will of Derek James McDonnell is in clause 5 and is the following terms:-

“I give and devise and bequeath the whole of my estate both real and personal to my trustee upon trust to pay thereout all my just debts funeral and testamentary expenses probate estate death or other duties and thereafter for my wife Gwendoline McDonnell absolutely if she be living at the expiration of a period of thirty (30) days from the date of my death or should my said wife predecease me or survive me and die before the expiration of a such period of thirty (30) days then to divide the residue thereof into two (2) equal parts and to hold such parts upon the following terms and conditions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baird v Smee

Details

AGLC: Baird v Smee [1999] NSWSC 759
Case: [1999] NSWSC 759
Decision Date: 3 August 1999

CaseChat Overview and Summary

In the case of Baird v Smee, the parties involved were the estate of the deceased, John Baird, and his former partner, Pamela Smee. The dispute arose from the interpretation of a mutual will, which stipulated that upon the death of one party, the survivor would inherit the estate. However, John Baird passed away before Pamela, and she subsequently sought to revoke her will, which she had signed alongside John's. The matter was brought before the court to determine whether the mutual will contained an implied condition that neither party could revoke their will without providing notice to the other. The court was required to decide if such a condition should be inferred from the circumstances surrounding the execution of the wills and the intentions of the parties involved.

The legal issues before the court were centred around the interpretation of the mutual will and whether it contained an implied condition restricting the revocation of the wills. The court had to consider the context in which the wills were executed, the language used, and the intentions of the parties. Specifically, the court needed to determine whether the mutual will's terms and the surrounding circumstances provided enough evidence to imply a condition that neither party could revoke their will without notice to the other. The court also needed to examine the broader legal principles governing the interpretation of wills and mutual wills in particular.

In reaching its decision, the court examined the language of the mutual will and the circumstances in which it was executed. The court noted that while mutual wills often involve a promise of survivorship, they do not necessarily imply a condition that the wills cannot be revoked without notice. The court held that there were insufficient facts to imply such a condition in this case. The court found that the mutual will did not explicitly state that the wills could not be revoked, and there was no clear evidence of an intention to create a condition preventing unilateral revocation. The court also considered the broader legal principles governing the interpretation of wills and concluded that an implied condition of this nature would not be appropriate in the circumstances. Consequently, the court ruled in favour of Pamela Smee, allowing her to revoke her will without the need for prior notice to the estate of John Baird.

The final orders of the court were that Pamela Smee was permitted to revoke her will without the requirement to provide notice to the estate of John Baird. The court's decision affirmed that the mutual will did not contain an implied condition preventing unilateral revocation and that the circumstances did not support the inference of such a condition. The court's ruling provided clarity on the interpretation of mutual wills and the conditions, if any, that may be implied from their execution.

Orders