Smith v Smith; Estate of Smith - [2007] NSWSC 116

CITATION: Smith v Smith, Estate of Smith [2007] NSWSC 116
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12, 13, 14, 15 December 2006

JUDGMENT DATE :
26 February 2007

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Windeyer J at 1

DECISION: Separate question answered. Plaintiff bound by 1983 orders. Proceedings dismissed.

CATCHWORDS: WILLS PROBATE AND ADMINISTRATION - probate and administration -claim for revocation of solemn form grant - contested proceedings in 1983 involving 1978 will and 1969 will - 1977 will discovered and two beneficiaries under it including present plaintiff joined as defendants and submitting appearance filed - consent orders for grant in solemn form of 1969 will. Plaintiff claims unaware of 1983 proceedings and that no authority for submitting appearance to be filed - plaintiff's claims not established - whether in any event submitting defendant bound by compromise - WILLS PROBATE AND ADMINISTRATION - probate and administration - where proceedings compromised on basis later will passed over - necessity for evidence casting doubt on later will - exception when persons with interest in propounding later will are defendants and do not propound.

LEGISLATION CITED: Agricultural Tenancies Act 1990
Mental Health Act 1958
Testators Family Maintenance Act and Guardianship of Infants Act 1916

CASES CITED: Estate of Clarence Gilbert Alcorn (unreported Powell J SCNSW 9 August 1991)
Estate of Muirhead (1971) P 263
In the Goods of Watts (1837) 1 Curt 594
Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1247
Ritchie v Malcolm [1902] 2 IR 403
Trust Co of Australia Limited v Perpetual Trustees W A Limited (No 2) (1995) 36 NSWLR 654
Withers v Graham re Estate of Colin Glen Graham (unreported Powell J SCNSW 9 August 1991)
Wytcherley v Andrews (1871) LR 2 PD 327

PARTIES: Glendon Brian Smith (Plaintiff)
Lindin Warrin Smith (First Defendant)
Alwyn Frederick Kelehear (Second Defendant)
Linden Russell Smith (Third Defendant)
Frederick Neville Crowley (Fourth Defendant)
Susan Louise Crowley (Fifth Defendant

FILE NUMBER(S): SC 122086 of 2004

COUNSEL: Mr M Neil, QC with him Mr S Benson (Plaintiff)
In person (First Defendant)
Submitting Appearance (Second Defendant)
Mr L Ellison SC (Third Defendant)
No Appearance (Fourth and Fifth Defendant) not parties to separate question

SOLICITORS: Abrahams & Abrahams (Plaintiff)
In person (First Defendant)
Arnold Lawyers (Second Defendant)
Michael Atkinson & Associates (Third Defendant)
Hills Solicitors (Fourth and Fifth Defendant)

- 20 -

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

WINDEYER J

MONDAY 26 FEBRUARY 2007

122086/04 GLENDON BRIAN SMITH V LINDIN WARRIN SMITH AND 4 ORS

JUDGMENT

1 This judgment concerns the separate question ordered for determination prior to the determination of the other questions in the action. That question is whether the plaintiff is bound by a grant of probate in solemn form dated 15 December 1983 of a will of his grandfather dated 30 October 1969. In this action the plaintiff seeks revocation of that grant and a grant of…

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.

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Details

Case: [2007] NSWSC 116
Decision Date: 26 February 2007

CaseChat Overview and Summary

The case between Smith and Smith, involving the Estate of Smith, was heard in a relevant Australian court. The dispute centred around the revocation of a solemn form grant of probate, with a specific focus on a 1978 will and a 1969 will. The 1983 contested proceedings concerning these wills were at the heart of the matter. The plaintiff claimed to have been unaware of the 1983 proceedings and challenged the authority for the submission of an appearance filed by the defendants. The defendants included two beneficiaries of a 1977 will, which was discovered after the 1983 proceedings. Consent orders had been previously issued for the solemn form grant of the 1969 will.

The court had to decide several legal issues, including whether the plaintiff's claims of unawareness and lack of authority for the appearance were valid. Additionally, the court had to consider whether the submitting defendant was bound by the compromise that had occurred in the earlier proceedings. The central issue was whether the existence of a later will, which was not contested, necessitated evidence casting doubt on its validity. The court also needed to determine if there was an exception when the individuals with an interest in propounding the later will were the defendants and did not actually propound it.

The court found that the plaintiff's claims were not substantiated. It was determined that the plaintiff was indeed bound by the compromise from the 1983 proceedings, despite any claims to the contrary. The court further ruled that there was no requirement for evidence to cast doubt on the later will if the defendants, who had an interest in propounding it, did not actually do so. The court dismissed the plaintiff's claims, and the consent orders for the grant of the 1969 will remained in effect.

No further orders were made beyond the dismissal of the plaintiff's claims. The court's decision affirmed the validity of the 1969 will and the compromise from the 1983 proceedings. The court's reasoning focused on the procedural aspects of the case, particularly the binding nature of the compromise and the lack of action by the defendants to propound the later will.

Orders