SIMPSON v HODGES [2007] NSWSC 1230

New South Wales Supreme Court

CITATION : SIMPSON v HODGES [2007] NSWSC 1230

HEARING DATE(S) : 4, 5 and 6 June 2007; 19 and 20 July 2007

JUDGMENT DATE : 6 November 2007

JURISDICTION : Equity

JUDGMENT OF : Hall J at 1

DECISION : (1) The transfer of $200,000 from the account of the deceased to the joint account in the name of the defendant and her husband was made with the approval and consent of the deceased. (2) The plaintiff is, accordingly, not entitled to the relief sought upon the basis that the transfer of $200,000 was misappropriated by the defendant. (3) The plaintiff has not established grounds which would warrant the Court passing over the defendant from being granted probate as joint executor with the plaintiff. (4) I direct the parties to lodge with my associate within 14 days, a minute of orders in light of the reasons for judgment with respect to the plaintiff's proceedings and the cross-claim proceedings. (5) I direct the Registrar of this Court to forward a copy of these reasons for judgment to the Director of Public Prosecutions and to make available, as may be required, the full transcript of these proceedings and the exhibits for inspection by any officers authorised in that behalf by the Director of Public Prosecutions. (6) Grant leave to the parties to make submissions as to costs.

CATCHWORDS : SUCCESSION – Probate – Whether in circumstances it is appropriate for court to pass over the defendant from being granted probate – Fit and proper person – Due administration of estate – Whether or not misappropriation by the defendant of money from the deceased – Whether or not money was gifted by the deceased to the defendant – Intention of gifting – Deceased's capacity and condition – Relevant standard of proof for misappropriation allegation – Credibility of witnesses – Acceptance of part only of a witness's evidence – Referral to Director of Public Prosecutions