Smith Estate - Clara Smith v Mathew Smith & Anor [2010] NSWSC 438

New South Wales Supreme Court

CITATION : Smith Estate - Clara Smith v Mathew Smith & Anor [2010] NSWSC 438

HEARING DATE(S) : 19 April 2010

JUDGMENT DATE : 19 April 2010

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 19 April 2010

DECISION : Declaration as sought.

CATCHWORDS : SUCCESSION – WILLS – Whether testamentary gift to witness should be declared valid.

LEGISLATION CITED : Probate and Administration Act 1898 (NSW)

CATEGORY : Principal judgment

Clara Smith (aka Clara Gomes and Clara Evans) (Plaintiff) PARTIES : Mathew Smith (aka Mathew McMahon and Mathew Turner) (First Defendant) Ebony Smith (Second Defendant)

FILE NUMBER(S) : SC 09/291280

COUNSEL : D. Flaherty (Plaintiff) P.R. Sternberg (First Defendant)

SOLICITORS : Quinn Lawyers (Plaintiff) Elias Gates & Assoc (First Defendant)

2009/291280 Danny Smith Estate: Clara Smith v Mathew Smith & Anor

JUDGMENT – Ex tempore

19 April , 2010

1 This is an application under the Probate and Administration Act 1898 (NSW) for a declaration that a gift in the will of the deceased in favour of a signatory to the will was made freely and voluntarily by the deceased, the effect of that declaration being that the gift would be valid, despite the fact that it was made in favour of a witness to the will. The evidence in the matter is uncontested. 2 The deceased married the Plaintiff in July 2000 and died some four years later. The evidence of the Plaintiff and of a witness to the will, one Shirley Munnery, is to the effect that, at the time of making this will, the deceased had a will kit, which had been provided to him some time earlier. He asked the Plaintiff and Ms Munnery to assist him in completing the will. Both the Plaintiff and Ms Munnery say that they were present when the deceased gave instructions as to how he wished the will to be filled out and completed by the Plaintiff. Both say that they witnessed his signature to the dispositions of the will in favour of the Plaintiff, which are as one would expect in the case of a person wishing to provide for his wife. 3 There is no suggestion in the evidence that, despite the fact that the will is basically in the handwriting of the Plaintiff, the gifts in favour of the Plaintiff were other than in accordance with the free will of the deceased. There is no suggestion that the deceased lacked testamentary capacity or was subjected to any undue influence. The evidence is all one way in favour of making the declaration sought. 4 There will be a declaration in terms of paragraph 2 and orders in terms of paragraphs 3 and 4 of the Summons. 5 I order that the Plaintiff's costs of these proceedings be paid out of the estate on the solicitor/client basis. 6 I order that the Defendants' costs of the proceedings be paid out of the estate on the indemnity basis. Such costs are to exclude any costs of and incidental to the Defence of the Defendants and the Cross Claim filed by the Defendants in these proceedings. The Defendants' costs also do not include any costs relating to a Family Provision Act claim made by either of them against the estate. – oOo –