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)

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.
The deceased is survived by three children:

the plaintiff, Kenneth Michael Smith;

Anthony Leslie Smith; and

Kylie Louise Heineken.

I will refer to the plaintiff as Kenneth with no disrespect intended.
The deceased was predeceased by his wife, Diane Leah Smith.
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.
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)
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.
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.
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…

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: [2024] NSWSC 568
Decision Date: 10 May 2024

CaseChat Overview and Summary

The matter before the court was an application for review of a Registrar’s decision declining to grant probate of a copy of the will of the deceased, Smith. The application was made by the solicitor who prepared the will, as no original will could be found. The deceased’s estate was in danger of devolution under intestacy, which would have the same effect as the will. The court was required to determine whether the presumption of revocation by destruction of the original will could be rebutted.

The legal issues that the court needed to decide were whether the presumption of revocation by destruction of the original will could be rebutted and if so, whether the copy of the will should be admitted to probate. The court considered the careful and complete disposition of the testator’s property in the will, the fact that the solicitor who prepared it held other original documents executed by the deceased, and that no other will could be found. The court also considered that revocation of the will would have no effect on who would take the estate, as it would devolve on intestacy as it does under the will.

The court found that the presumption of revocation by destruction was rebutted. The careful and complete disposition of the testator’s property in the will, along with the other original documents executed by the deceased held by the solicitor, were sufficient to rebut the presumption. The court held that the copy of the will should be admitted to probate as it would have the same effect as the original will. The court concluded that the revocation would have no effect on who would take the estate, as it would devolve on intestacy as it does under the will. The court granted the application for review and admitted the copy of the will to probate.

Orders