Smith v Hayler: Estate of Alan Oakley Smith [1999] NSWSC 1282

New South Wales Supreme Court CITATION : Smith v Hayler: Estate of Alan Oakley Smith [1999] NSWSC 1282 CURRENT JURISDICTION : Probate FILE NUMBER(S) : 112133/99 HEARING DATE(S) : 17/12/1999 JUDGMENT DATE : 17 December 1999

PARTIES : Ian Macquarie Smith and Malcolm Alan Smith (Plaintiff) Mark Hayler (Defendant) JUDGMENT OF : Santow J

COUNSEL : J B Whittle, SC (Plaintiff) B Hayward (Sol.) (Defendant) SOLICITORS : Bruce & Stewart (Plaintiff) B Hayward & Co (Defendant) CATCHWORDS : WILLS — Blind elderly testator but with testamentary capacity — No attestation or other sufficient basis for assuming changed Will read to him — Complex change as would have required to be read to testator for it to be sufficiently established that he knew and approved the Will — Shifting onus where suspicion cast on Will — Not within problematic notion of compromise as evidence sufficient to lead to setting aside later Will and admitting earlier one. CASES CITED : Pates v Craig (Santow J, 28 August 1995, unreported) DECISION : Previous but not last Will admitted to probate.

REVISED — 23 December, 1999 IN THE SUPREME COURT OF NEW SOUTH WALES IN PROBATE

SANTOW J

No. 112133/99 IAN MACQUARIE SMITH and MALCOLM ALAN SMITH Plaintiff MARK HAYLER Defendant

JUDGMENT — ex tempore 17 December 1999

1 I give brief reasons for the orders I have just made in relation to granting of Probate of the late Alan Oakley Smith's 1995 Will. These reasons deal with why I have not made orders granting probate to the 1998 Will, each of such wills as being identified in the Plaintiffs' Summons and the short Minutes of Order. 2 The principal difference between the two Wills is that the second 1998 Will in clause 9 provides a different disposition of one-third of residue. Instead of that disposition going absolutely to the deceased's son Malcolm, he being one of two sons who have earlier received one-third each in the 1995 Will, that disposition is to the two grandchildren of the deceased (Malcolm's two sons). This is under a clause of some complexity. That complexity bears upon the basis for rejecting the 1998 Will as one where I am not satisfied that the deceased "knew and approved" it, as required for validity, where the deceased at the time of 1998 Will was blind. 3 The arrangement in the 1998 Will, drawn by a solicitor of great competence Miss Jean Hill, is expressed in these terms: "(c) To set aside one third of my residuary estate in a Testamentary Trust for my grandsons LACHLAN SMITH and GRAHAM SMITH AND I APPOINT as Trustees of this Testamentary Trust the persons who are the partners of the firm Hill Thomson and Sullivan, Solicitors of 13/9 Hunter Street, Sydney at the date of my death AND I DECLARE that such Trustees may be employed or act and shall be entitled to charge and be paid all professional or other charges for any act done by him or his firm in connection with the Trust AND I DIRECT that the assets of this Trust or the balance then remaining shall be distributed to my said grandsons in equal shares on the younger grandson attaining the age of forty years AND I FURTHER DIRECT that until such final distribution the Trustees shall in their absolute discretion have the power to apply for the benefit of either beneficiary so much of the income from the contingent share of each beneficiary and up to one-half of the capital of such contingent share towards the needs in life of each such beneficiary."