McKinney v Campbell; Estate Campbell [2003] NSWSC 244

New South Wales Supreme Court

CITATION : McKinney v Campbell; Estate Campbell [2003] NSWSC 244 HEARING DATE(S) : 31/03/03 JUDGMENT DATE : 3 April 2003

JURISDICTION: Equity Division Probate List JUDGMENT OF : Barrett J DECISION : Declaration in plaintiff's favour as to matters in s.13(2)(c) of the Wills, Probate and Administration Act 1898. Defendant's costs to be paid out of plaintiff's share of estate on indemnity basis; otherwise no order as to costs.

CATCHWORDS : SUCCESSION - wills, probate and administration - the making of a will - where attesting witness is spouse of beneficiary - whether court satisfied that testator knew and approved of gift and that gift made freely and voluntarily - PROCEDURE - costs - where beneficiary succeeds in showing testamentary gift not void although beneficiary's spouse was attesting witness - no case for departing from order required by Supreme Court Rules in relation to plaintiff's costs - costs of persons cited who do not become parties - where their participation did not add to debate on issues before the court LEGISLATION CITED : Supreme Court Rules, Part 52A rule 29 Wills, Probate and Administration Act 1898, ss.13(1) and 13(2)(c) Commissioner of Stamp Duties v Pearse (1951) 84 CLR 490 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 CASES CITED : Miller v Miller; Estate of Miller (2000) 50 NSWLR 81 Tonkiss v Graham; Estate of Thompson [2002] NSWSC 89 Tonkiss v Graham (No 2); Estate of Thompson [2002] NSWSC 1093 PARTIES : Norma Alice McKinney - Plaintiff Phillip John Campbell - Defendant FILE NUMBER(S) : SC 119019/02 Mr R G H Keller - Plaintiff COUNSEL : No appearance - Defendant Mr T Hall - Persons cited Maurice Buckley C T Poole & Son - Plaintiff SOLICITORS : Robinson Beale Horton McMinn - Defendant Salmon & Co - Persons cited