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

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

On the facts, the plaintiff was aware of the 1983 probate proceedings and authorised his brother to make the necessary arrangements, including entering a submitting appearance on his behalf. As a defendant who entered a submitting appearance and who did not propound the 1977 will, he is accordingly bound by the 1983 orders and the grant in solemn form of the 1969 will, regardless of whether the orders were by consent or after full trial.

Jurisdiction
Australia
Judgment Date
26 February 2007
Procedural Posture
Probate Proceeding / Determination of Separate Question Prior to Final Orders
Outcome
Separate question answered: plaintiff bound by 1983 orders; proceedings dismissed.
Legal Topics
['revocation of Grant of Probate' 'solemn Form Grant' 'consent Orders in Probate' 'binding Effect of Submitting Appearance']
['wills and Estates' 'probate'] ['revocation of Grant of Probate' 'solemn Form Grant' 'consent Orders in Probate' 'binding Effect of Submitting Appearance']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Probate Proceeding / Determination of Separate Question Prior to Final Orders

Legal Issues

  1. 1 ['Whether the plaintiff is bound by the orders made in 1983 granting probate in solemn form of the 1969 will' 'Whether a defendant who entered a submitting appearance is bound by consent orders made without his knowledge or only by orders after judicial determination' 'Whether the plaintiff authorised his brother to instruct solicitors to appear and enter a submitting appearance on his behalf in 1983 proceedings' 'Whether there was knowledge and authority regarding representation and settlement' 'Effect of compromise or settlement versus judicial decision in probate cases']

Ratio Decidendi

On the facts, the plaintiff was aware of the 1983 probate proceedings and authorised his brother to make the necessary arrangements, including entering a submitting appearance on his behalf. As a defendant who entered a submitting appearance and who did not propound the 1977 will, he is accordingly bound by the 1983 orders and the grant in solemn form of the 1969 will, regardless of whether the orders were by consent or after full trial.

Court Disposition

Separate question answered: plaintiff bound by 1983 orders; proceedings dismissed.

Orders

  • ['Answer to the separate question: the plaintiff is bound by the settlement and orders made on 15 December 1983 in proceedings 91 of 1982.' "Plaintiff's claim dismissed and judgment for the defendants." 'Plaintiff to pay the costs of the defendants.' 'Exhibits to be returned after 28 days if no appeal is lodged.']