Baird v Smee [1999] NSWSC 759

New South Wales Supreme Court CITATION : Baird v Smee [1999] NSWSC 759 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2954/98 HEARING DATE(S) : 12/07/99 JUDGMENT DATE : 3 August 1999

PARTIES : Lorraine Noeline Baird & Anor v Dolores Smee JUDGMENT OF : Master Macready at 1

COUNSEL : Mr C.J. Bevan for the plaintiffs Mr P. Blackburn-Hart for the defendant SOLICITORS : Turner Freeman for the plaintiffs Warren McKeon Dickson for the defendant CATCHWORDS : Wills. Mutual wills. Whether there existed sufficient facts to imply a condition that the wills would not be revoked without notice. Held in the circumstances that the condition should not be implied. Birmingham v Renfrew (1936) 57 CLR 666 Re Newey (Decd) (1994) 2NSWLR 590 at 593 Re Goodchild (1997) 1 WLR 1216 at 1225 CASES CITED : Hubbard v Mason Santow J unreported 9/12/97 Hudson v Gray (1927) 39 CLR 473 at 487 Brigg v Queensland Trustees Ltd (1990) 2 Qd R 11 at 14 Low v Perpetual Trustees WA Ltd (1995) 14 WAR at 42-3 Aslan v Kopf NSW Court of Appeal 16/05/95 DECISION : Para 26

- - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Tuesday 3 August 1999

2954/98 LORRAINE NOELINE BAIRD & ANOR v DOLORES SMEE JUDGMENT

1 MASTER: This is the hearing of these proceedings which concerns a claim as to the making of what are said to be mutual wills by Derek James McDonnell and Gwendoline McDonnell. The matter originally came before me for the purposes of hearing the defendant's Notice of Motion filed on 8 June 1999 seeking dismissal of a Statement of Claim both under Part 15 Rule 26 and Part 13 Rule 5. With the concurrence of the parties that motion was stood over to the final hearing of the suit which was brought on expeditiously. A judge of the court has referred the whole of the proceedings to a Master for his determination. 2 Derek James McDonnell and Gwendoline McDonnell married on 13 May 1967. Each had been married before and each had two children from an earlier marriage at the time of their marriage to each other. They each made wills on 12 November 1986. Their wills were not expressed to be mutual wills. They appointed the Public Trustee as Executor. The depositive part of the will of Derek James McDonnell is in clause 5 and is the following terms:- "I give and devise and bequeath the whole of my estate both real and personal to my trustee upon trust to pay thereout all my just debts funeral and testamentary expenses probate estate death or other duties and thereafter for my wife Gwendoline McDonnell absolutely if she be living at the expiration of a period of thirty (30) days from the date of my death or should my said wife predecease me or survive me and die before the expiration of a such period of thirty (30) days then to divide the residue thereof into two (2) equal parts and to hold such parts upon the following terms and conditions namely:- (A) As to one (1) of such parts for such of them my children James Robert McDonnell and Lorraine Noelene Baird who shall be living at my death and if both in equal parts absolutely provided however should my said children or either of them predecease me leaving a child or children living at my death who shall attain or have attained the age of eighteen (18) years such child or children shall take and if more than one in equal shares absolutely the share or interest his her or their parent would have taken under this clause of this my will had such parent been living at my death. (B) As to the remaining one (1) of such parts for such of them my said wife's children Dolores Smee and Donald William Straney who shall be living at my death and if both in equal shares absolutely provided however should my said wife's children or either of them predecease me leaving a child or children living at my death who shall attain or have attained the age of eighteen (18) years such child or children shall take and if more than one in equal shares absolutely the share or interest his her or their parent would have taken under this clause of this my will had such parent been living at my death. Provided however that should any of the above mentioned parts fail to vest then the total number of parts into which residue shall be divided shall be reduced by the number of parts failing to vest and the parts failing to vest shall be construed as nil parts." 3 Gwendoline McDonnell's will was a mirror image of this will. Derek McDonnell died on 27 April 1992 and the whole of his estate under his will passed to Gwendoline. On 12 March 1993 Gwendoline made a new will under which she left the whole of her estate to her two children to the exclusion of Derek's children. Gwendoline died on 23 April 1996 and probate was granted in respect of her 1993 will. 4 The house held by Derek and Gwendoline was held by them as joint tenants and passed by survivorship to Gwendoline and now hence to her children. The estate of Donald comprised a small amount of cash in the order of $20,000. 5 In an Amended Statement of Claim the plaintiffs have pleaded the terms of the agreement for mutual wills as relevantly being the following:- '(i) that each testator would gift his or her estate absolutely to the other testator and that in the default of the other testator surviving the original testator would gift his or her estate equally to his or her own children of the one part and to the children of the other testator of the other part in equal shares. (ii) that each testator promised that he or she would not revoke his or her mutual will without giving reasonable notice to the other.