Smith v Smith, Estate of Smith [2007] NSWSC 116

New South Wales Supreme Court

CITATION : Smith v Smith, Estate of Smith [2007] NSWSC 116 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 12, 13, 14, 15 December 2006

JUDGMENT DATE : 26 February 2007

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Windeyer J at 1

DECISION : Separate question answered. Plaintiff bound by 1983 orders. Proceedings dismissed.

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - probate and administration -claim for revocation of solemn form grant - contested proceedings in 1983 involving 1978 will and 1969 will - 1977 will discovered and two beneficiaries under it including present plaintiff joined as defendants and submitting appearance filed - consent orders for grant in solemn form of 1969 will. Plaintiff claims unaware of 1983 proceedings and that no authority for submitting appearance to be filed - plaintiff's claims not established - whether in any event submitting defendant bound by compromise - WILLS PROBATE AND ADMINISTRATION - probate and administration - where proceedings compromised on basis later will passed over - necessity for evidence casting doubt on later will - exception when persons with interest in propounding later will are defendants and do not propound.

Agricultural Tenancies Act 1990 LEGISLATION CITED : Mental Health Act 1958 Testators Family Maintenance Act and Guardianship of Infants Act 1916

Estate of Clarence Gilbert Alcorn (unreported Powell J SCNSW 9 August 1991) Estate of Muirhead (1971) P 263 In the Goods of Watts (1837) 1 Curt 594 CASES CITED : Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1247 Ritchie v Malcolm [1902] 2 IR 403 Trust Co of Australia Limited v Perpetual Trustees W A Limited (No 2) (1995) 36 NSWLR 654 Withers v Graham re Estate of Colin Glen Graham (unreported Powell J SCNSW 9 August 1991) Wytcherley v Andrews (1871) LR 2 PD 327