Walters v Dawson

[2024] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation:	Walters v Dawson [2024] NSWSC 570
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:	Probate granted. Declaration made that the Court is satisfied that the testator knew and approved of the beneficial disposition given or made by the will to the plaintiff/cross-defendant, and that it was given or made freely and voluntarily by him.
Catchwords:	SUCCESSION – Succession Act s 10(3) – Where plaintiff attests a will and is also the main beneficiary under it – Whether the Court is satisfied that the testator knew and approved of the disposition and that it was given or made freely and voluntarily by him, so that the beneficial disposition is not void to the extent that it concerns the plaintiff – Held the Court is so satisfied – Short minutes of order made
Legislation Cited:	Succession Act 2006 (NSW) s 10
Category:	Principal judgment
Parties:	Gregory James Walters (Plaintiff/Cross-Defendant) Shane Dawson (Defendant/Cross-Claimant)
Representation:	Counsel: P Glissan (Plaintiff/Cross-Defendant) Solicitors: McNamara & Associates (Plaintiff/Cross-Defendant)
File Number(s):	2023/00361526
Publication restriction:	Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: The Court is asked to make consent short minutes of order admitting to probate the will of Alan Bertram Hooper (the deceased) dated 3 March 2022. The deceased passed away on 12 October 2022 aged 98 years.

2. The orders sought include a declaration under s 10(3) of the Succession Act 2006 (NSW) (the Act) that the Court is satisfied that the testator knew and approved of the beneficial disposition given or made by the will to the plaintiff/cross-defendant, and that it was given or made freely and voluntarily by him.

3. Section 10 of the Act provides:

(1)    This section applies if a beneficial disposition is given or made by will to a person (the "interested witness") who attests the execution of the will.

(2)    The beneficial disposition is void to the extent that it concerns the interested witness or a person claiming under the interested witness.

(3)    A beneficial disposition is not void under subsection (2) if--

(a)   at least 2 of the people who attested the execution of the will are not interested witnesses, or

(b)    all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give that consent, or

(c)    the Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator.

…

(4) In this section--

"beneficial disposition" does not include a charge or direction for the payment of—

(a)    a debt, or

(b)    reasonable remuneration to an executor, administrator, legal practitioner or other person acting in relation to the administration of the testator's estate.

4. The plaintiff/cross-defendant attested the will.

5. The will appoints him as executor and trustee and bequeaths the residue of the estate to him. Accordingly, the disposition made by the will is void to the extent that it concerns the plaintiff/cross-defendant, unless relevantly, under s 10(3)(c) the Court is satisfied that it was given or made freely and voluntarily by the testator.

6. The following affidavits were read:

1. Neil Kevin Hartley sworn 19 March 2024;

2. Gregory James Walters sworn 31 January 2024;

3. Gregory James Walters sworn 8 May 2024;

4. Barry John Heard sworn 31 January 2024;

5. Narelle McGrath sworn 2 February 2024;

6. Lawrence Nash sworn 15 February 2024;

7. Lawrence Nash sworn 7 May 2024; and

8. Lawrence Nash sworn 7 May 2024.

7. The deceased and the plaintiff/cross-defendant were in a de facto relationship, the consequence of which would be that on intestacy, the plaintiff/cross-defendant would take the residue in any event.

8. The plaintiff/cross-defendant gave evidence that the deceased told him that he was going to rewrite his will and leave most of his estate to the him because he was “the only one that had always been there for him”.

9. At the time of the deceased’s passing, the deceased and the plaintiff/cross-defendant lived at the Shoalhaven Caravan Park. Narelle McGrath also resided there and gave evidence that the deceased described the plaintiff/cross-defendant as his spouse and that he wanted him to have it all.

10. Lawrence Nash, a retired real estate agent, prepared the will and took it to the deceased in his caravan. He also attested the will. He gave evidence that the deceased told him that he wished to change his will to make the plaintiff/cross-defendant the main beneficiary. Nash was unaware of the effect of s 10.

11. The evidence discloses a clear and conscious intention on the part of the deceased to make the disposition in favour of the plaintiff/cross-defendant, and that he did so freely and voluntarily.

12. I make short minutes in accordance with the documents so entitled which I have initialled, dated today’s date and placed with the papers.

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Decision last updated: 14 May 2024