Re Smallwood (dec'd) - [2008] VSC 74

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. Probate 26 of 2006

IN THE MATTER of he Will and Estate of ETHEL MARY SMALLWOOD, deceased

MARY-LYN LAURIE SMALLWOOD AND KEALY SMITH	Plaintiffs
v
JOHN ARTHUR SMALLWOOD	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18 March 2008
DATE OF JUDGMENT:	18 March 2008
CASE MAY BE CITED AS:	Re Smallwood, deceased
MEDIUM NEUTRAL CITATION:	[2008] VSC 74

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Wills – undue influence – whether will procured by undue influence

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Norman J. O’Brian SC	Russell Kennedy
For the Defendant	Mr Shane Newton	Adrian McKay & Associates

HIS HONOUR:

Ethel Mary Smallwood died on 29 January 2006 at the age of 86 years. She had lived in Foster for some 70 years until September 2004 when she moved to a special accommodation facility at Veronica Gardens in Northcote. She had been married to Arthur Murdoch Rees Smallwood who had, for many years, conducted a pharmacy in Foster. Mr Smallwood died in or about 1995.

Mrs Smallwood, during the time she lived at Foster, was a person of some consequence in the community. I was told that she was a member of the hospital board, and it is clear that she was an active member of the community there.

There were five children of the marriage, 12 grandchildren and one great‑grandchild.

―David John Smallwood, who was born in 1946, and who predeceased Mrs Smallwood on 25 February 2003. David, who was married to Joy Smallwood, had two adult children, Rebecca Woodall and James Keith Smallwood. Rebecca has a child, Ethan, who is therefore a great‑grandchild of the deceased.
―John Arthur Smallwood, the defendant, who was born in 1951. He has three adult children, Meg, Patrick and Veronica and two minor children, Bessie and Joe. John is married to Elizabeth Mary Gaynor.
―Mary‑Lyn Laurie Smallwood, the firstnamed plaintiff, who was born in 1954. She has a minor son, Jack.
―Paul Smallwood, who was born in 1957, and who predeceased Mrs Smallwood on 23 December 2004. Paul was survived by two adult children, Mark and Nickola, and by his partner of four years, Maki Okazaki.
―Kealy Smith, the secondnamed plaintiff, who was born in 1959. Kealy has two adult children, Lewis and Emily.

I shall, without intending any disrespect, refer to these family members by their given names.

On 13 January 2005 Mrs Smallwood executed a will which had been drawn up by her long-time solicitor, Clive William White of Oakleys White Lawyers at Foster. In this will she appointed her two daughters to be her executors and trustees. She bequeathed her personal chattels to her trustees to divide them as they thought fit between her children and grandchildren. After forgiving and releasing her children from repayment of any loan made in her lifetime, she left a legacy of $10,000 to each of her 12 grandchildren as attained the age of 18 years and $5,000 to…

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 Re Smallwood (dec'd)

Details

AGLC: Re Smallwood (dec'd) [2008] VSC 74
Case: [2008] VSC 74
Decision Date: 18 March 2008

CaseChat Overview and Summary

The matter in Re Smallwood (dec'd) involved the validity of a will left by the deceased, Smallwood. The dispute arose between the deceased's family members, who contested the will, alleging it was procured by undue influence. The court was tasked with determining whether the will was valid or if it had been executed under undue influence. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the will was validly executed, or if it had been influenced by undue pressure exerted by one of the beneficiaries, who was also the executor of the will. The family argued that the beneficiary had exerted undue influence over the deceased, who was of advanced age and poor health, leading to the execution of the will in a manner not reflective of the deceased's true wishes. The court had to consider the applicable legal principles and assess the evidence presented to determine if undue influence was indeed exerted.

The court examined the evidence and determined that there was insufficient evidence to support a finding of undue influence. The judge found that the deceased had shown testamentary capacity and had made the will voluntarily, without any undue pressure from the beneficiary. The court was satisfied that the deceased had a sound mind and had willingly executed the will in accordance with their wishes. Therefore, the court ruled in favour of the executor and upheld the validity of the will.

The court ordered that the will be admitted to probate and that the executor proceed with the administration of the estate in accordance with the terms of the will. The contesting family members were directed to bear their own costs of the proceedings.

Orders