Reed v Smith

Case [2022] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:  Reed v Smith [2022] QSC 173
PARTIES:  TIMOTHY OWEN REED
(First Plaintiff)
AND
MARIAN ELLEN REED
(Second Plaintiff)
v
JANET MARY SMITH (AS EXECUTOR OF THE
ESTATE OF THE LATE GORDON BEST WRIGHT)
(Defendant)
FILE NO/S:  BS 8355 of 2019
DIVISION:  Trial Division
PROCEEDING:  Claim
ORIGINATING  Supreme Court at Brisbane
COURT: 
DELIVERED ON:  19 August 2022
DELIVERED AT:  Brisbane
HEARING DATE:  18-20 October 2021, 21-22 March 2022.
JUDGE:  Kelly J
ORDER:  1. The claim for a declaration as contained in
paragraph 1 of the prayer for relief to the Further
Amended Statement of Claim is dismissed.
2. I will hear the parties as to costs and further orders.

CATCHWORDS: 

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – JOINT AND MUTUAL WILLS – where the testator died in 2019 – where the testator’s wife predeceased him in 2018 – where the

testator and his late wife made wills in 1995, 1999, and 2001 – where the testator made their last will in 2016 – where the testator’s 2016 will appointed the defendant as his sole

executor and trustee – where the 2001 wills provided the plaintiffs with more generous bequests than the testator’s 2016

will – whether the testator and his late wife made a

testamentary agreement to (a) not revoke their respective wills without the knowledge or consent of the other, and (b) to enjoy

fully the ownership of the assets and property of each of them,

whether held jointly or severally, during each of their lifetimes subject to the limitation that neither of them would make inter vivos substantial gifts from those assets so as to defeat the non- revocation agreement

SUCCESSION – TESTAMENTARY CAPACITY – GENERALLY – where the plaintiffs sought declaratory relief – where the defendants submitted that declaratory relief should

be refused because the evidence did not establish that the
testator’s wife lacked testamentary capacity when the 2016
will was executed – whether the testator’s wife lost
testamentary capacity before the testator’s 2016 will
Aslan v Kopf [1995] NSWCA 26, cited
Baird v Smee [2000] NSWCA 253, considered
Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11, cited
Birmingham v Renfrew (1937) 57 CLR 666, cited
Charles v Fraser [2010] EWHC 2154, cited
Croft v Sanders [2019] NSWCA 303, cited
Drivas v Jakopovic (2019) 100 NSWLR 505, cited
Estate of Masters (1994) 33 NSWLR 446, cited
Hussey v Bauer [2011] QCA 91, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Osborne v Osborne [2001] VSCA 228, cited
Peter v Shipway (1908) 7 CLR 232, 240, cited
Plunkett v Bull (1915) 19 CLR 544, 548-9, cited
Pridham v Pridham [2010] SASC 204, cited
Public Trustee of Queensland v Smith [2009] 1 Qd R 26,
cited
Re Goodchild (deceased) [1997] 3 All ER 63, cited
Re McPherson [1968] VR 368, cited
Re Oldham [1925] 1 Ch 75, cited
Re Walker [1905] 1 Ch 160, cited
Re White

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Details
AGLC
Reed v Smith [2022] QSC 173
Case
[2022] QSC 173
Decision Date

CaseChat Overview and Summary

The case of Reed v Smith involved a dispute over the validity of a will and the interpretation of testamentary intentions. The parties involved were the plaintiffs, who were relatives of the deceased, Gordon Best Wright, and the defendant, who was the executor of Gordon's will. The dispute centred on whether Gordon's will, which was executed jointly with his wife Dawn Elaine Wright in 1995, was valid and if it accurately reflected Gordon's testamentary intentions. The case was heard in the Supreme Court of South Australia.

The legal issues before the court included the admissibility and weight of evidence concerning the circumstances in which the will was made, the validity of joint wills, and the interpretation of the will's provisions. The court had to consider whether there was sufficient evidence to establish the testamentary intentions of Gordon, particularly in light of the fact that Dawn predeceased Gordon in 2018. Additionally, the court needed to determine whether the will accurately reflected Gordon's intentions after Dawn's death and whether the plaintiffs were entitled to any part of Gordon's estate.

The court found that the will was validly executed and that it accurately reflected Gordon's testamentary intentions. The judge held that there was credible and reliable evidence to support the conclusion that Gordon and Dawn had intended to make a joint will, and that the will was intended to remain in force even after Dawn's death. The court dismissed the plaintiffs' claims, finding that they had not established that Gordon's will did not reflect his true intentions. The judge also noted that the plaintiffs' evidence about family conversations and relationships, while potentially relevant, was not sufficiently reliable to overturn the clear provisions of the will.

The court made orders dismissing the plaintiffs' claims and confirming the validity of Gordon's will. The executor of the will was directed to distribute the estate in accordance with the will's provisions. The plaintiffs were ordered to pay the defendant's costs of the proceedings.

Orders

Orders of the court

1.

Background

Background to the litigation

Finally, in Wesley v Wesley[19] Debelle J said: “It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.” [19] (1998) 71 SASR 1, 5. The various wills, some objective facts and contemporaneous documents The 1995 wills are unsigned.[20] They were prepared by an Auckland firm of solicitors. [20] It would seem that the parties accepted that the 1995 wills were executed at some time in 1995: T 7-3 l 21. Dawn’s 1995 will is materially in the following terms: “THIS IS THE LAST WILL AND TESTAMENT of me DAWN ELAINE WRIGHT of Auckland in New Zealand, Married Woman 1. I HEREBY REVOKE all wills and testamentary dispositions heretofore made by me AND I DECLARE this to be my last will and testament. 2. IF my husband GORDON BEST WRIGHT shall be living at the expiration of one calendar month of my death then I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and wheresoever situate unto my said husband absolutely AND I APPOINT my said husband sole executor of this my will. 3. IF my said husband shall not be living at the expiration of one calendar month of my death then I DECLARE that the following provisions of this my will shall take effect but that otherwise the following provisions shall be absolutely null and void. 4. I APPOINT JOHN SAMUEL GOLDSTINE and MARK ROLAND WINGER both of Auckland Solicitors (hereinafter together with the survivor of them and the executors or executor of such survivor or other the trustees or trustee for the time being called “my trustees”) to be the executors and trustees of this my will. 5. I GIVE DEVISE AND BEQUEATH all and singular the whole of my estate both real and personal of what nature or kind soever and wheresoever situate or being unto my trustees UPON TRUST to sell call in collect and convert the same into money with power in their absolute discretion to postpone for such time or times as they may think fit the sale calling in collection or conversion of the whole or any part or parts thereof and after payment thereout of my just debts and funeral and testamentary expenses including all estate succession and other death duties payable in respect of my estate actual or notional TO HOLD the same for such of them my brother OWEN ATHOL REED of 254 Cairncroft Road Oakville Ontario L6J 4M3 and my sister-in- law CATHERINE ELLEN REED as shall survive me and if more than one then in equal shares between them. 6. I EMPOWER my trustees on any sale of my real or personal estate to sell or dispose of the same or any part thereof either by public auction or private contract either in one lot or in parcels and either for cash or on such terms as to credit as my trustees shall deem fit. 7. I DECLARE that any executor or trustee for the time being of this my will who may be a solicitor may make all such usual and reasonable professional and other charges in connection with my estate as he could do were he not such executor or trustee.”

Evidence

Evidence Before The Court

Marian also gave evidence about distant family conversations, about which there were no contemporaneous notes. She presented as a witness who was not prepared to make appropriate concessions in relation to the difficulties which necessarily attend the accurate recollection of such conversations.[68] The plaintiff submitted that it is not unreasonable to think that a person who has a conversation about a windfall would remember the conversation even after, as here, such a long time.[69] The conversations being recalled had occurred more than a decade past. It might be that a long past event or occasion might be remembered with some confidence, but it is an entirely different matter to suggest that someone might retain an accurate or reliable recollection of what was said in a conversation at such an event or on such an occasion. I formed the view that her evidence about these conversations was not reliable and should be treated with particular caution. Evidence and findings about Gordon’s and Dawn’s wider family relationships [68] T 2-37 ll 1-10. [69] Outline of submissions on behalf of the first and second plaintiffs [28]. The plaintiffs led evidence about the nature and extent of Gordon’s and Dawn’s relationships with his and her wider families. The evidence was adduced to support the inference that, at certain times, Gordon and Dawn considered themselves obliged to provide for the Reed family arising out of Owen’s historical generosity and by reason of their affection for Owen’s children, particularly Tim and Marian. As to the former matter, it was clear that Tim regarded Dawn’s and Gordon’s wealth as being a product of Owen’s benevolence. Indeed, Tim “considered the wealth of Gordon and Dawn to be [his] family’s wealth, not anyone else’s family wealth”.[70] [70] T 2-15 ll 23-27 Tim’s evidence extended to recollections of conversations with Gordon which tended to paint an adverse view of Gordon’s relationships with his extended family. For example, he gave evidence that Gordon told him in 2012 that he was not close to Margaret or her two children.[71] However, there was a considerable body of evidence which suggested that Gordon enjoyed an affectionate relationship with his side of the family. Margaret gave quite detailed evidence about the nature of her relationship with Gordon and Dawn.[72] She described their relationship as being very close throughout their life, although they spent much of it living on opposite sides of the world. That she enjoyed a close relationship with Gordon was not a matter challenged in her cross examination. Gordon visited Margaret in the UK on four or five occasions and stayed with her. Margaret travelled to Australia to see Gordon shortly before his death in 2019. She maintained regular telephone, mail and email contact with both Dawn and Gordon. This aspect of her evidence was confirmed by her cross examination.[73] Margaret also gave evidence that when her parents died, they left the majority of their money to her brothers John and Gordon.[74] This evidence was not challenged in her cross examination. [71] Ex 1 29 [59]. [72] Ex 1 260-263 [10]-[22]; 267-8 [2]-[4]. [73] T 6-20 ll 12-35. [74] Ex 1 268 [3]-[4].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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