Bisdee v Smith - [2004] TASSC 152

[2004] TASSC 152

CITATION: Bisdee v Smith [2004] TASSC 152

PARTIES:  BISDEE, Susan Jillian
  v
  SMITH, Shane Alan

SMITH, Andrew Charles
SMITH, Matthew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  225/2003

M12/2004

DELIVERED ON:  17 December 2004
DELIVERED AT:  Hobart
HEARING DATES:  27 September 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Succession – Wills, probate and administration – The making of a will – Testamentary instruments – Knowledge and approval of contents – Generally – Circumstances raising suspicion – Will witnessed by husband of sole beneficiary – Application for order that section invalidating gift does not apply.

McKinnon v Voigt [1998] 3 VR 543; Vernon v Watson [2002] NSWSC 600, referred to.
Aust Dig Succession [12]

REPRESENTATION:

Counsel:
             Plaintiff/Applicant:  T J Williams
             Defendants/Respondents:              M E O'Farrell
Solicitors:
             Plaintiff/Applicant:  Gunson Williams
             Defendants/Respondents:              Simmons Wolfhagen

Judgment Number: [2004] TASSC 152
Number of Paragraphs: 22

Serial No 152/2004
File Nos 225/2003
M12/2004

SUSAN JILLIAN BISDEE v SHANE ALAN SMITH,
ANDREW CHARLES SMITH, MATTHEW SMITH

REASONS FOR JUDGMENT BLOW J

17 December 2004

The plaintiff/applicant has brought these two proceedings concerning the will of her mother, Ida Mabel Smith, who died on 17 August 2002. The will was executed on 18 January 2002. It was a simple will, by which the deceased gave the whole of her estate to the plaintiff, and appointed her as her sole executrix. The two attesting witnesses were the solicitor who prepared the will and the plaintiff's husband. As a result of her husband having witnessed the will, and subsequent events relating to him having witnessed it, it has become necessary for the plaintiff to bring an action seeking a grant of probate in solemn form, and to make an application under the Wills Act 1992, s45(1), for an order that she is to be entitled under the will as if s44 of that Act, which invalidates gifts to the spouses of attesting witnesses, did not apply to her. Those proceedings have been heard together.

The deceased was a widow. She bore two children. One of them is the plaintiff. The other, Alan Owen Smith, died in February 1978. He was survived by three sons, who are the defendants and respondents in these proceedings. By the previous will of the deceased, made in December 1978 and not revoked prior to 18 January 2002, they were each to receive a percentage of the residuary estate of the deceased. If the effect of the will of 18 January 2002 was to revoke the 1978 will without the gift of the whole estate to the plaintiff taking effect, they would each be entitled to one sixth of the estate as the result of an intestacy.

The probate action

In the probate action, the defendants pleaded that the deceased did not know and approve the contents of the will. They pleaded that (a) the deceased did not give instructions for the will; (b) the instructions were given by the plaintiff; (c) the will was not read over…

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 Bisdee v Smith

Details

AGLC: Bisdee v Smith [2004] TASSC 152
Case: [2004] TASSC 152
Decision Date: 17 December 2004

CaseChat Overview and Summary

The case of Bisdee v Smith involved a dispute concerning the validity of a will, specifically whether a gift to the sole beneficiary was valid given the suspicious circumstances surrounding the execution of the will. The matter was heard in the Supreme Court of Queensland. The deceased, Mrs Bisdee, had made a will leaving her entire estate to her daughter, Ms Smith. The will was witnessed by Ms Smith’s husband, Mr Smith. The primary legal issue before the court was whether the circumstances of the will's execution raised sufficient suspicion to invalidate the gift to Ms Smith under relevant statutory provisions.

The court examined the principles of testamentary capacity, knowledge and approval, and the potential undue influence that could arise from the relationship between the witness and the beneficiary. It was argued that the presence of Mr Smith as a witness, coupled with his relationship to the sole beneficiary, created a situation where the presumption of undue influence could not be rebutted. The court assessed whether the statutory provision invalidating gifts under such circumstances should apply, and if not, whether there was sufficient evidence to suggest that Mrs Bisdee had full knowledge and approval of the will’s contents. Ultimately, the court found that the circumstances did indeed raise sufficient suspicion and applied the statutory provision to invalidate the gift to Ms Smith.

In reaching its decision, the court considered the legal precedents regarding the application of the statute and the necessity for clear evidence of the deceased’s knowledge and approval in the face of suspicious circumstances. The court held that the presence of Mr Smith as a witness, who stood to benefit from the will, created an irrebuttable presumption of undue influence. As such, the gift to Ms Smith was deemed invalid. The court made an order that the section of the statute invalidating the gift was to apply, and as a result, Ms Smith's claim to the estate was rejected.

Orders