Judge Fights Sisters For Share Of Late Mother's Million

The Age

Tuesday March 18, 2008

Peter Gregory, Chief Court Reporter

COUNTY COURT judge John Smallwood has alleged his two sisters induced their elderly mother to cut him out of her $1 million estate.

In a Supreme Court battle before Justice David Byrne, lawyers for Judge Smallwood have argued that Mary-Lyn Smallwood and Kealy Smith exercised undue influence over their mother, who made her last will in January 2005.

Ethel Mary Smallwood was 86 when she died in 2006. She left the sisters $945,000, amounts of $10,000 each to 12 grandchildren, and $5000 to a great-grandchild.

But Judge Smallwood has contested the will, saying it contradicted earlier documents leaving equal amounts to Mrs Ethel Smallwood's five children.

Two of Mrs Smallwood's children - both sons - died in 2003 and 2004.

The last will left no money to Judge Smallwood, and only the $10,000 amounts to the children of deceased brothers David and Paul Smallwood.

Shane Newton, for Judge Smallwood, said he did not accept Ethel Smallwood wanted to "cut out" the grandchildren.

He asked why Judge Smallwood should be removed as a beneficiary when his mother was 85 when they had experienced a strained relationship for 30 years.

Mr Newton said Ethel Smallwood was distressed after the death of her son, Paul, on December 23, 2004. He said she had "some degree of incoherence" about six days after making her last will.

But Mary-Lyn Smallwood and Kealy Smith gave sworn evidence denying they had pressured their mother into changing her will, or to move from Foster, in country Victoria, to Melbourne.

Ms Smallwood, a barrister, said she did not have coercive conversations with her mother, but Ethel Smallwood mentioned her will on a number of occasions after Paul Smallwood died.

She said her mother was extremely upset with Judge Smallwood's behaviour after Paul died, and she (Mary-Lyn Smallwood) would have been "stunned" if he had been named as a beneficiary.

Ms Smallwood agreed she took her mother to family solicitor Clive White's office when she changed the will, but said she dropped Ethel Smallwood off, and waited outside.

Mr White said in court Mrs Smallwood was very adamant about making the changes, but he was concerned that it was the kind of will likely to face a challenge.

Norman O'Bryan, SC, for the sisters, said there was no evidence that Mrs Smallwood was subject to undue influence when making her will.

The trial continues.

© 2008 The Age

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