Smith v Wessling-Smith

[2017] QSC 166

SUPREME COURT OF QUEENSLAND

CITATION:

Smith & ors v Wessling-Smith & ors [2017] QSC 166

PARTIES:

RITA CARMEN SMITH AS THE EXECUTOR FOR THE ESTATE OF GERALD STUART SMITH DECEASED

(first plaintiff)

RITA CARMEN SMITH, ADAM GERHARD SMITH AND GRETCHEN EMMA SMITH

(second plaintiff)

v

BENJAMIN MORRISON WESSLING-SMITH AND LUKE JAMES SMITH AS EXECUTORS FOR THE ESTATE OF JOAN MARGARET SMITH DECEASED

(first defendant)

RONALD STRATTON SMITH

(second defendant)

IAN MORRISON SMITH

(third defendant)

FILE NO/S:

SC No 5502 of 2015

DIVISION:

Trial Division

PROCEEDING:

Claim

DELIVERED ON:

11 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12, 13, 14 and 16 December 2016

JUDGE:

Bond J

ORDER:

The plaintiffs’ claims are dismissed.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where the plaintiffs allege that three brothers agreed that they would not make a claim against their deceased father’s will while their mother was alive, but would distribute her estate equally among themselves when she died – whether certain conversations said to give rise to the agreement occurred – whether there was an intention to create legal relations

EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTIONS – where the first plaintiff gave evidence of a conversation with her husband in which he told her about an agreement he had reached with his brothers – where the plaintiffs allege that the statement about the executory contract is admissible as a declaration against interest – whether the statement is admissible as a declaration against interest

Property Law Act 1974 (Qld), s 55

Kennedy & Hunt v Griffiths [2011] QSC 369, cited
Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733, cited
R v The Inhabitants of Worth (1843) 4 QB 132, cited
Vosnakis v Arfaras [2015] NSWSC 625, cited

Ward v H S Pitt & Co [1913] 2 KB 130, cited

J D Heydon, Cross on Evidence (LexisNexis Butterworths, 10^th ed, 2015)

COUNSEL:

M Horvath for the plaintiffs

R T Whiteford for the defendants

SOLICITORS:

Michael Cooper Lawyer for the plaintiffs

McCullough Robertson for the defendants

Introduction

1. William and Joan Smith married in 1947.  They had three sons: Ron, Ian and Gerald. At all times material to this proceeding each of the sons was married with two children.

2. William died in 1991, leaving his estate to Joan.  There is no evidence which suggests that any of their sons felt aggrieved by that outcome.

3. Gerald died of cancer in 2001, aged 51.  He left behind a widow (Rita) and their two children, Adam and Gretchen, then aged 25 and 21 respectively. 

4. Joan died in 2014 aged 99, 23 years after Williams’s death, and 13 years after Gerald’s death.  Her estate was worth not less than $2,960,000, and was comprised of personal property, cash investments, a life insurance policy, and certain real estate.

5. In her last will, dated 10 May 2013, Joan preferred Ron and Ian and their families over Gerald’s family.  She divided her personal property between Ron and his two children…