The Estate of Smith

[2024] NSWSC 568

Supreme Court

New South Wales

Medium Neutral Citation:	The Estate of Smith [2024] NSWSC 568
Hearing dates:	10 May 2024
Date of orders:	10 May 2024
Decision date:	10 May 2024
Jurisdiction:	Equity - Succession & Probate List - Probate
Before:	Hammerschlag CJ in Eq
Decision:	Will admitted to Probate
Catchwords:	SUCCESSION – Probate - Review of Registrar’s decision declining to grant probate of a copy of a will – Presumption of revocation by destruction – Rebuttal of Presumption – Where the will makes a careful and complete disposition of the testator’s property – Where solicitor’s who prepared it hold other original documents executed by the deceased but do not have the original will and no other will can be found – Where the revocation would have no effect on who would take the estate because it would devolve on intestacy as it does under the will – Presumption rebutted, will admitted to probate
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Heffernan v Innes [2021] NSWCA 1033
Category:	Principal judgment
Parties:	Kenneth Michael Smith (Plaintiff)
Representation:	Counsel: C Hodgson (Plaintiff) Solicitors: Rafton Family Lawyers (Plaintiff)
File Number(s):	2022/0270725
Publication restriction:	Nil

Ex Tempore JUDGMENT (REVISED)

1. HIS HONOUR: Leslie Thomas Smith (the deceased) died on 14 May 2022 aged 86 years, leaving property in this State. The gross value of the estate is $2,270,520. It includes real property at 41 Mawson Parade, Chifley (the Property), and amounts in bank accounts.

2. The deceased is survived by three children:

• the plaintiff, Kenneth Michael Smith;

• Anthony Leslie Smith; and

• Kylie Louise Heineken.

3. I will refer to the plaintiff as Kenneth with no disrespect intended.

4. The deceased was predeceased by his wife, Diane Leah Smith.

5. By Summons issued on 23 February 2023, the plaintiff sought a grant of probate of a will made by the deceased dated 10 November 2000, under which he is appointed executor and trustee. Under it the deceased bequeathed the entirety of the residue of his estate to his children in equal shares. This position would pertain on intestacy.

6. On 22 December 2023, the Registrar, after requisitions and on the information then available, correctly, in my opinion, declined to grant probate on the basis that the will was not an original document (which clearly it is not)

7. Kenneth seeks a review of the Registrar’s decision by Notice of Motion filed on 1 May 2024. The application was made outside the time limit of 28 days from the Registrar’s decision provided in UCPR 49.20(2) but the Court may extend that limit at any time under subrule (4). Kenneth seeks an extension of time; in the circumstances it should be granted.

8. Kenneth seeks a grant of probate of the will, and in the alternative, a declaration that the deceased died interstate, together with orders for the grant of letters of administration.

9. The Notice of Motion also contains a prayer for a grant of special administration aimed at facilitating completion of a contract of sale which was entered into on 13 March 2023 for the sale of the property. The circumstances of that sale are opaque, but that does not matter for present circumstances because of the consent of all those who may have an interest in this matter.

10. I record that I was provided with written submissions by counsel for the plaintiff dated 9 May 2024 which will be marked MFI 1 and will be retained with the papers.

11. Kenneth's siblings have been served with the application and consent to the orders being made.

12. Where an original will cannot be found, a rebuttable presumption of revocation by destruction arises. The rebuttal of the presumption is not difficult where the will makes a careful and complete disposition of the testator's property, and there are no other circumstances to point to a probable destruction: see Heffernan v Innes [2021] NSWCA 1033 at 433 and following, and the authorities cited there.

13. The will qualifies for such a description. Additionally, the following factors strengthen the rebuttal:

1. the will was prepared by solicitors who were asked whether they had the original. Their response was that they did not, but they did hold an original Power of Attorney dated 5 December 2019 and an appointment of Enduring Guardian dated 5 December 2019. No other will has been found; and

2. revocation of the will would have no effect on who would take the estate and no rational reason for revoking it by destruction is apparent.

14. I am satisfied that there is sufficient evidence to rebut the presumption of animo revocandi.

15. I make orders in terms of paragraphs 1, 2, 3 and 4 of the Notice of Motion. The costs of the Motion maybe paid out of the estate on the indemnity basis.

**********

Decision last updated: 14 May 2024