Baird v Smee [1999] NSWSC 759

Baird v Smee [1999] NSWSC 759

The plaintiffs failed to establish by clear and satisfactory evidence that Derek and Gwendoline McDonnell intended their corresponding wills to be mutually binding or that they agreed not to revoke them without notice. The wills contained no recital of a mutual wills agreement, the Public Trustee instructions did not refer to mutual wills, and the reported conversations concerned only the contents of the wills rather than any binding promise. The surrounding circumstances, including the second marriage, children from prior marriages, and delay in revocation, were insufficient to imply the necessary agreement.

Jurisdiction
Australia
Judgment Date
03 August 1999
Procedural Posture
Equity Proceedings Concerning an Alleged Mutual Wills Agreement / Final Hearing; Defendant's Notice of Motion Seeking Dismissal Under Part 15 Rule 26 and Part 13 Rule 5 Had Been Stood Over to the Final Hearing
Outcome
Proceedings dismissed.
Legal Topics
['mutual Wills' 'implied Agreement Not to Revoke' 'constructive Trust' 'burden of Proof' 'corresponding Wills']
['wills and Estates' 'equity' 'contract'] ['mutual Wills' 'implied Agreement Not to Revoke' 'constructive Trust' 'burden of Proof' 'corresponding Wills']

Case Brief

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Procedural Posture

Equity Proceedings Concerning an Alleged Mutual Wills Agreement / Final Hearing; Defendant's Notice of Motion Seeking Dismissal Under Part 15 Rule 26 and Part 13 Rule 5 Had Been Stood Over to the Final Hearing

Legal Issues

  1. 1 ['Whether Derek James McDonnell and Gwendoline McDonnell made mutual wills pursuant to a legally binding agreement.' 'Whether an agreement that the wills would not be revoked without reasonable notice, or after the first death, could be implied from the wills and surrounding circumstances.' 'Whether the plaintiffs had proved by clear and satisfactory evidence that the wills were mutually binding.']

Ratio Decidendi

The plaintiffs failed to establish by clear and satisfactory evidence that Derek and Gwendoline McDonnell intended their corresponding wills to be mutually binding or that they agreed not to revoke them without notice. The wills contained no recital of a mutual wills agreement, the Public Trustee instructions did not refer to mutual wills, and the reported conversations concerned only the contents of the wills rather than any binding promise. The surrounding circumstances, including the second marriage, children from prior marriages, and delay in revocation, were insufficient to imply the necessary agreement.

Court Disposition

Proceedings dismissed.

Orders

  • ['The proceedings are dismissed.' "The plaintiff is ordered to pay the defendant's costs."]