Smith v O'Neill [2014] NSWSC 1119

Supreme Court New South Wales

Medium Neutral Citation: Smith v O'Neill [2014] NSWSC 1119 Hearing dates: 16, 17 July 2014 Decision date: 21 August 2014 Jurisdiction: Equity Division Before: Hallen J Decision: (a) Orders, with effect from the date of these orders, that Probate in common form of the Will dated 18 May 2012 made by Vera Smith (also known as Sue Smith) ("the deceased") granted on 28 May 2013 be revoked. (b) Orders that the Registrar cancel the original Probate document delivered by the Defendant and retained in the court file. (c) Declares that the court is satisfied that the document dated 18 May 2012 ("the May 2012 Will") purports to state the testamentary intentions of the deceased, and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006. (d) Declares that the court is satisfied that the May 2012 Will forms the deceased's Will and that the deceased intended it to form her Will. (e) Orders, subject to compliance with the rules of court, that Probate, in solemn form, of the May 2012 Will, be granted to the Defendant. (f) Orders that the matter be remitted to the Registrar to otherwise complete the grant. (g) Orders that the balance of the further amended Statement of Claim be dismissed. (h) Orders that the balance of the Cross-Claim be dismissed. (i) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings. (i) Invites the parties to make submissions on costs within 7 days following the delivery of reasons for judgment and the issue of costs shall then be determined. Catchwords: SUCCESSION - Wills probate and administration - Revocation of grant of Probate in common form - Whether Will executed in accordance with Part 2.1 of the Succession Act 2006 - Not so executed - Whether court satisfied that Will forms the deceased's Will and that she intended it to form her Will - Gift to solicitor in Will - Another solicitor, a friend and colleague of solicitor/beneficiary, takes instructions from deceased - Suspicious circumstances - Whether deceased knew and approved of the terms of the Will Legislation Cited: Births Deaths and Marriages Registration Act 1995 (NSW) Civil Procedure Act 2005 (NSW) Corporations Law 1989 (Cth) (Repealed) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) New South Wales Professional Conduct and Practice Rules (Solicitors' Rules) 2013 Probate and Administration Act 1898 (NSW) Revised Professional Conduct and Practice Rules 1995 (Repealed) Succession Act 2006 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 Bates v Messner (1967) 67 SR (NSW) 187 Belcastro v Belcastro [2004] WASC 111 Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398 Easter v Griffith (1995) 217 ALR 284 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Estate of Peter Brock [2007] VSC 415; (2007) 1 ASTLR 127 Estate of Williams, Deceased (1984) 36 SASR 423 Fuller v Strum [2002] 1WLR 1097 Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99 In re Munn [1943] SASR 304 In re Nickson [1916] VLR 274 In re R (Deceased) [1950] 2 All ER 117 In the Estate of Knibbs, Deceased; Flay v Trueman [1962] 2 All ER 829; [1962] 1 WLR 852 In the Estate of Margaret, Deceased, [2012] NSWSC 1490 In the Estate of O'Dell [2010] NSWSC 678 In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep) In the Will and Codicil of Callow [1918] VLR 406 In the Will of Morgan [1950] VLR 335 In the Will of England (1900) 22 ALT 86 In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1 Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596 Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd [1994] FCA 1059; (1994) 51 FCR 446 Kerr v Badran [2004] NSWSC 735 Kuhl v Liebcheschel [1933] SASR 394 Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 Mavrideros v Mack [1998] NSWCA 286; 45 NSWLR 80 Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (A Firm) [1979] 1 Ch 384 Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 Oakes v Uzzell [1932] P 19; (1931) 100 LPJ 99 Palin v Ponting [1930] P 185 Perrins v Holland [2009] EWHC 1945 (Ch) Ramage v Waclaw (1988) 12 NSWLR 84 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Re Broad; Smith v Draeger [1901] 2 Ch 86 Re Estate of Kiepas (Deceased); Twemlow v Kiepas [2004] NSWSC 452 Re Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 Re Levy [1953] VLR 652 Romano v Romano [2003] NSWSC 436 Szmulewicz v Recht [2011] VSC 368 The Estate of Kevin John Hines v Hines [1999] WASC 111 The Estate of Silady (Supreme Court (NSW), Santow J, 21 November 1994, unrep) The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep) Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Tsagouris v Bellairs [2010] SASC 147 Vernon v Watson; Estate Clarice Isabel Quigley, Deceased [2002] NSWSC 600 Wintle v Nye [1959] 1 WLR 284 Wood v Smith [1993] Ch 90; [1992] 3 All ER 556 Yazbek v Yazbek [2012] NSWSC 594 Texts Cited: Professor A H Oosterhoff, "Testamentary Capacity, Suspicious Circumstances and Undue Influence" (1999) 18 The Estates, Trust and Pension Journal 369 Category: Principal judgment Parties: Ian Russell Smith (first Plaintiff) Norman Joseph Smith (second Plaintiff) Gary Mervyn John O'Neill (Defendant) Representation: Counsel: Ms C Smith (Plaintiffs) Ms R Kako (Defendant) Solicitors: Somerville Laundry Lomax (Plaintiffs) O'Neills Law (Defendant) File Number(s): 2013/217455