Seabrook v Seabrook

[2005] NSWSC 1243

CITATION:	Seabrook v Seabrook; In the Estate of Seabrook [2005] NSWSC 1243
HEARING DATE(S):	28 November 2005
JUDGMENT DATE :	28 November 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Gift upheld

CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION - spouse of attesting witness beneficiary under will - consideration of s13(2)(c) of Act.
LEGISLATION CITED:	Wills Probate and Administration Act 1898 s13(2)(c)
PARTIES:	Anthony Michael Seabrook (Plaintiff) Mark Leonard Seabrook (Defendant)
FILE NUMBER(S):	SC 108470 of 2004
COUNSEL:	E Cohen (Plaintiff) B Townsend (Defendant)
SOLICITORS:	Neil J O'Connor & Associates (Plaintiff) Hemming & Hart (Defendant)

LOWER COURT JURISDICTION:

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

MONDAY 28 NOVEMBER 2005

108470/04 ANTHONY MICHAEL SEABROOK v MARK LEONARD SEABROOK THE ESTATE OF DAWN ELIZABETH SEABROOK

JUDGMENT

1 HIS HONOUR: This is an application for an order under section 13(2)(c) of the Wills Probate and Administration Act 1898 for a declaration that the testatrix knew and approved of the gift made to the husband of an attesting witness and that the gift was given or made freely and voluntarily by the testator.

2 When the evidence originally concluded before me on 24 October and I considered the matter, I came to the view that the evidence put forward by the plaintiff was lacking in a number of important matters. I relisted the matter on 3 November and gave a brief statement of why I thought the plaintiff seemed to have misunderstood the onus on him to present positive evidence to the court to satisfy the requirements of the section.

3 I stood the matter over to today to give the plaintiff the opportunity of providing further evidence and if he wished to make an application to re-open, to put that evidence before the court. At that time I said that the court is usually reluctant to re-open on its motion, a matter which has been concluded, but it seemed to me that the evidence which was lacking might easily be available and that justice required an opportunity to be given for this to be done, particularly as it was clear that the testatrix did not wish one of her sons to take any part of her estate and he would do so if the gift to the spouse of the attesting witness were not declared to be valid.

4 The evidence has been put before the court today on affidavit and, particularly the affidavit of Mr Stephen Seabrook, establishes, I consider, that the deceased understood what she had done in her will and that it was in accordance with her intentions. It is fair to say that the affidavit evidence of the solicitor who was responsible for preparing the will is not completely satisfactory and the notes of instructions which she was given do not explain the gift of residue in the will. Nevertheless, I accept her evidence as to the reading over of the will as executed to the deceased prior to its being executed and that the deceased understood it as read to her and was satisfied with its terms and that it carried out her wishes.

5 In some ways it seems to me that an unfair burden has been placed on Miss Shidiak in this matter. She was given the task of visiting the deceased and taking instructions for her will and preparing it, without any proper guidance in what was required, second she swore the affidavits filed in these proceedings without the solicitor, to whom she was responsible, putting on any evidence at all which might go to explain why he thought the will was appropriate in its terms to enable the estate to be administered. However, while that seems to me to be a little unfair to Miss Shidiak, I am satisfied that the attesting witness to the will exerted no pressure whatsoever and had no part whatsoever in arranging for the solicitor to visit or in any instructions given by the deceased to the solicitor. In addition she took no part in the conversation which took place while those instructions were being given nor did she take any part in the proceedings relating to the execution of the document apart from being an attesting witness to the will.

6 So far as the gift of the shares in a company called Longley Investments Pty Limited is concerned, I am satisfied that the deceased understood that she was making this gift, albeit she might not have been aware of the value of the shares. She was, however, it seems, aware of the income those shares were providing and she was justified in thinking that it would be difficult if not impossible to obtain the capital value of those shares, they being shares in a private company.

7 Having come to the conclusion that the testatrix knew and approved of the gifts which were made to her son, the plaintiff, and that she made them freely and voluntarily, and that they were what she wished to happen, I consider that the declarations sought should be made.

8 So far as the costs are concerned, I am of the clear view that it was appropriate for Mr Mark Seabrook to contest this part of the plaintiff's claim, and that his costs should be paid out of the estate.

9 I make the declarations in paragraph 1 and 2 of the summons. I refer the matter to the Registrar to complete the grant. Costs of the defendant to be paid out of the estate of the deceased. Order the costs of the plaintiff up to and including 24 October 2005 be paid out of the estate on the indemnity basis. No order as to the plaintiff's costs after that date. Direct the plaintiff to indemnify the estate in respect of the costs of the defendant after 24 October 2005.

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